Administrative Law (ADL2601) - South African Public Law
Describing Administrative Law
General Features of Administrative Law:
- State Authority: The public power exercised by an organ of state (or natural/juristic person) over a party in a subordinate position. If the person/body does not possess state authority or perform a public function, administrative law does not apply.
- Administrative Action: Conduct of functionaries and institutions (administrators) exercising public power or functions in terms of legislation. It usually takes the form of a "decision" with adverse effects.
- Just Administrative Action: The constitutional standard for performing administrative action. Section 33 of the Constitution requires lawful, reasonable, and procedurally fair action, including the provision of written reasons.
- Control of Administrative Action: The methods used to correct or rectify unjust administrative action, including internal (administrative) and judicial remedies.
Key Definitions and Technical Terms:
- Accountability: Principles used to control arbitrary administrative discretion.
- Administrator: An organ of state or any natural/juristic person taking administrative action (per PAJA).
- Organ of State: Defined in Section 239 of the Constitution, including government departments/administrations and functionaries exercising constitutional or legislative power. It expressly excludes courts/judicial officers.
- Delegated Legislation: Subordinate legislation enacted by the executive branch (e.g., regulations, proclamations), not original parliamentary or provincial legislation.
- Functus Officio: A principle meaning a decision-maker has completed their task and cannot change the decision; the official is "no longer functioning" in that specific capacity.
- Ubuntu: Described as African Humanism; a view emphasizing compassion, respect, and community-spirit in social relationships.
Nature of Administrative Law:
- It is a branch of public law regulating the activities of organs of state and persons exercising public power.
- It prescribes procedures, ensures actions remain within the law, and provides systems of control.
The Administrative-Law Relationship
Characteristics of the Relationship:
- At least one legal subject must exercise state authority (the superior position).
- The other legal subject is in a subordinate/subservient position (it involves a vertical relationship: ↕).
- The relationship is regulated by administrative law principles rather than private law equality.
General vs. Individual Relationships:
- General (Objective) Relationship: Created by general means (legislation). It applies impersonally to a group or class (e.g., all refugees) and is not affected by individual decisions.
- Individual (Subjective) Relationship: Created by individual administrative decisions. It applies to specifically identifiable legal subjects (e.g., the withdrawal of a specific individual's permit).
The Legal Subjects of the Administrative-Law Relationship
Identification of the Authoritative Party:
- Section 239 of the Constitution identifies "organs of state."
- Part (a) includes national, provincial, and local government departments.
- Part (b) includes any other functionary/institution exercising constitutional or public power in terms of legislation.
- Private/Non-Statutory Bodies: Voluntary associations (clubs/jockeys) are generally not organs of state, but common-law administrative principles often apply because of their authoritative internal structure. If there is "significant public interest," PAJA may apply.
The Subordinate Party:
- Can be a natural person, a juristic person (company/NGO), or even a lower-ranking official within the same department.
- The subordinate person is protected by Section 33 against the abuse of power.
Sources of Administrative Law
Binding/Authoritative Sources:
- The Constitution: The supreme law (Section 2). It sets the standards for all action.
- Legislation: Primary source (PAJA, PAIA, and enabling statutes like the Refugees Act).
- Case Law: Judicial precedent (stare decisis).
- Common Law: Unwritten law (ultra vires principle, natural justice).
- Administrative Practice: Custom or usage; must be reasonable, long-standing, and certain.
- International Law & Ubuntu.
Persuasive Sources: Academic writings, Green/White Papers, Chapter 9 institution reports (Public Protector), and foreign law.
Administrative Action Under PAJA
Definition (Section 1 of PAJA):
- A decision (or failure to take one) of an administrative nature made under an empowering provision by an organ of state (or person exercising public power) that adversely affects rights and has a direct, external legal effect.
Specific Exclusions:
- Executive powers of the National Executive (Section 84(2) ceremonial/political powers).
- Legislative functions of Parliament/Provincial Legislatures.
- Judicial functions of officers of the court.
- Decisions to prosecute.
- Decisions under PAIA.
Classes of Administrative Acts:
- Legislative: Making rules/regulations.
- Judicial: Adjudication by administrative tribunals (e.g., Refugee Appeal Board).
- Pure Administrative: Day-to-day implementation (e.g., issuing a license).
Just Administrative Action (Section 33)
Lawfulness: Action must be authorized by law. Administrators must be properly appointed and qualified. Powers are limited by geography, time (prospective vs. retrospective), and subject matter.
Delegation: General rule is delegatus delegare non potest (a delegate cannot delegate). Exceptions exist for mandate, deconcentration (within a hierarchy), and decentralization (independent bodies).
Abuse of power concepts:
- Unauthorised Purpose: Using power for a goal not intended by the statute.
- Unauthorised Procedure: Circumventing prescribed procedures (shortcuts).
- In Fraudem Legis: Deliberate, disguised evasion of the law.
- Mala Fides: Action in bad faith or with dishonest intent.
Reasonableness: Includes rationality (rational connection between ends and means) and proportionality (suitability, necessity, and narrow proportionality). The Bato Star case established that a decision is reviewable if it is one a reasonable decision-maker could not reach.
Procedural Fairness (Section 3 of PAJA):
- Mandatory Requirements: Adequate notice, reasonable opportunity to make representations, clear statement of action, notice of review/appeal rights, and notice of the right to request reasons.
- Discretionary Requirements: Legal representation in complex cases, presenting/disputing evidence, and personal appearance.
- Natural Justice Rules: Audi alteram partem (hear the other side) and Nemo iudex in sua causa (rule against bias/reasonable apprehension of bias).
- Legitimate Expectation: Fairness extends to cases where a person has no vested right but a reasonable expectation based on a promise or regular practice (Traub case).
Written Reasons (Section 5 of PAJA):
- Any person materially/adversely affected can request reasons within 90 days. Administrator must respond within 90 days.
- Reasons must be "adequate" (properly informative and explaining why action was taken).
Control and Remedies
Internal Control: Methods within the administration (senior official review, Public Protector, Auditor-General). PAJA (Section 7(2)) requires internal remedies to be exhausted before court intervention, unless exceptional circumstances exist.
Judicial Control: Courts act as a watchdog.
- Standing (Locus Standi): Section 38 provides broad standing (own interest, on behalf of others, public interest, associations).
- Forms of Relief:
- Statutory Appeal: Only if provided by statute (merits and law).
- Judicial Review: Inherent power of High Court/PAJA (legality/process).
- Interdict: Prohibitory (stops action) or Mandatory (mandamus - forces duty).
- Declaratory Order: Clarifies legal status/rights.
- Defence in Criminal Proceedings: Challenging validity as a shield.
Orders under PAJA (Section 8):
- Setting aside action and remitting it for reconsideration.
- Substituting decisions (only in exceptional cases).
- Directing payment of compensation.
- Making any order that is "just and equitable."