Administrative Law Notes

Administrative Action - Alteration and Withdrawal

An administrator has the power to modify or retract invalid administrative actions, as they are essentially correcting a previous error. However, this power is limited if:

  • The validity of the action has been challenged in court or before a higher domestic tribunal.

  • The individual has gained rights or privileges due to the invalid action.

In such cases, the authority cannot alter the administrative act. Invalid administrative acts must be addressed through judicial review, as established in Merafong City Local Municipality v AngloGold Ashanti Ltd 2017 (2) SA 211 (CC), which confirmed that unlawful administrative action is not void but exists in fact and can underpin lawful acts.

It was emphasized that an organ of state must challenge invalid administrative acts without undue delay. Similarly, the Supreme Court of Appeal held in Kwa Sani Municipality v Underberg/Himeville Community Watch Association and Another [2015] 2 All SA 657 (SCA) that an administrative body cannot simply ignore an invalid act but must seek a court order to set it aside.

Valid Administrative Action

A distinction is made between different types of valid administrative actions:

  • Onerous or Burdensome: These acts impose a duty, prohibit an action, or deny a request (e.g., refusing a license application). These can be altered by the administrator, as the administration should be able to correct its mistakes.

  • Beneficial: These acts can only be altered if the power to do so is explicitly granted or implied. For example, a license, once issued, cannot be arbitrarily revoked.

  • Status-Affecting: Decisions affecting an individual's status (e.g., adoption orders) cannot be rescinded unless authorized expressly or by necessary implication. Once such a decision is made, the administrator is functus officio.

Functus Officio

The maxim "functus officio" means that an official has completed their task or duty and no longer has the authority to act on a matter. For example, would a decision-maker be functus officio in the Earthlife Africa case?

Conclusion on Administrative Action

Administrative action serves as the gateway to applying Section 33 of the Constitution through PAJA. It is classified into various types, each with its own legal force, requiring those in authority to act lawfully, reasonably, and procedurally fairly, in addition to providing written reasons when rights are adversely affected.

Just Administrative Action: An Overview

Just administrative action involves lawfulness, reasonableness, and procedural fairness, alongside the provision of written reasons for decisions affecting rights, representing an overarching constitutional requirement for validity under Section 33.

  • Lawfulness: Requires that administrative actions are authorized by law and comply with all legal requirements.

  • Reasonableness: Requires that administrative actions are justifiable and rational.

  • Procedural Fairness: Requires that fair processes are followed when making administrative decisions.

  • Written Reasons: Requires that adequate reasons are provided for administrative actions that affect individual's rights.

It is rooted in Section 33 of the Constitution, and informed by the principles in Section 195(1), which emphasizes professional ethics, efficient resource use, development-oriented administration, impartial service, responsiveness to public needs, accountability, transparency, good human-resource management, and representativeness.

Terms like intra vires, ultra vires, “applying one’s mind to the matter,” and legality are often used synonymously with just administrative action.

Ultra Vires and Intra Vires

The concept of ultra vires (acting beyond one's powers) is crucial in determining the validity of administrative actions. Intra vires (within the power) signifies actions within legal bounds.

The modern approach requires compliance with the Constitution, PAJA, legislation, common law, and case law. A more constrained interpretation could result in non-compliance with the constitutional mandate for just administrative actions under Section 33.

The Principle of Legality

Administrative legality stems from common law, requiring administrators to adhere to all legal requirements to act lawfully. It ensures public administration serves the public interest and protects human rights, aligning with constitutional principles for accountability, responsiveness, and openness.

Lawful Administrative Action: Constitutional and Legislative Framework

The right to lawful administrative action is constitutionally guaranteed to prevent abuse of power and ensure fair treatment. PAJA enforces this right by enabling judicial review of unlawful actions, ensuring that such reviews can no longer be excluded. The Constitution ensures organs of state comply with all laws, underpinned by the principle of legality.

The inclusion of the right to lawful administrative action within the Constitution restricts the use of ouster clauses and entrenches the principle of legality, demanding compliance with all laws.

Administrative authority and power are derived from enabling legislation, which provides commands and directives relating to the scope, content, and nature of administrative power. Key aspects include:

  • Requirements for specific knowledge, experience, or qualifications of the administrator.

  • Specific procedures that must be followed.

Any administrator must act within the powers conferred by the empowering statute; exceeding these powers renders the action ultra vires.

Values and Administrative Validity

Section 1 of the Constitution lists values that are vital for administrators, setting boundaries for administrative action. These values link to the conduct of public functionaries and institutions, ensuring administrative validity.

  • Human dignity, equality, and advancement of human rights and freedoms are particularly vital given the unequal relationship between the administrator and individual.

  • Section 2 dictates that any action inconsistent with the Constitution is invalid.

  • Ubuntu encapsulates values incorporated into the Constitution.

Chapter 2, the Bill of Rights, protects rights against violation and restricts the potential abuse of public or administrative power. Section 36 permits the limitation of rights only by a law of general application when reasonable and justifiable, maintaining a balance between the limitation of rights and its purpose.

The Administrator: Authority and Power

The administrator is the public functionary or institution performing administrative action, now defined as an organ of state or any natural or juristic person taking administrative action. Essential characteristics include:

  • Being clothed with state authority, giving them a superior position in the relationship.

  • Having legal discretionary power, ranging from wide to narrowly demarcated discretion.

The legislation authorizing administrative action often prescribes requirements for the administrator, such as status, qualification, attributes, experience, or knowledge.

Delegation of Power

Delegation involves entrusting a task, responsibility, or power to someone else, typically an agent of the original power holder. Delegation aims to divide labor efficiently within the administration.

It is generally unlawful unless certain requirements have been met. The delegatus delegare non potest rule that a granted power may not be delegated to another, expresses the idea that the administrator with authority must exercise it themselves. It prevents the undermining of administrator qualification requirements.

The key judgement dealing with delegation is the case of Shidiack v Union Government 1912 AD 642.

The Constitution contains a general authorization to delegate functions, qualified by consistency with enabling legislation, allowing ministers and senior administrators to delegate powers.

The following rules apply when delegation of powers is permitted:

  1. If the administrator is authorized to perform a particular action and this entails the exercise of discretion, the task concerned may not be delegated unless the delegation is authorized by statute.

  2. An administrator who exercises a discretionary power and makes a decision is not prevented from instructing a subordinate administrator merely to implement the decision. This does not constitute an unauthorized delegation, as the superior administrator merely issues a mandate or instruction.

  3. The rule against further delegation also implies that an administrator may not, in the exercise of his or her discretion, put him- or herself in the situation of having to accept directions, orders or commands from another body. In other words, he or she must apply his or her own mind to the matter.

  4. An administrator may, without contravening the rule against delegation, appoint a fact-finding committee to assist him or her, provided the actual discretion is ultimately exercised by the proper authority (i.e. the administrator).

Forms of Delegation

The degree of transfer of power determines three kinds of delegation: mandate, deconcentration, and decentralization of power.

  • Mandate: A simple instruction where a senior administrator makes a decision and hands it over to another administrator for implementation.

  • Deconcentration: Internal delegation within state departments, ensuring division of labor and quick execution of government functions. The head of the administrative hierarchy retains control and may withdraw delegation at any time.

  • Decentralization: Transfer of powers to an independent organ or body that carries out these powers and functions entirely in its own name. The delegator cannot interfere with the activities of the body, exercising control indirectly through appointment of members and appeal or review of decisions.

Powers of the Administrator

The administrator is not allowed to take any administrative action that has not been authorized by law. The empowering statute sets out what the administrator is authorized by law to do in a particular situation.

The content and scope of the powers depend on:

  • The statute in question, and of course the Constitution.

  • The appropriate rules of statutory interpretation and common-law rules.

  • The general principles of administrative law.

The empowering legislation also delimits the administrator’s power in terms of:

  • Geographical Area.

  • Time.

  • Object of the decision.

Abuse of Power

An administrator must exercise his or her power for an authorized purpose. If any administrator exceeds the statutory powers laid down in the enabling statute, the action is ultra vires (or beyond the official statutory jurisdiction).

Forms of abuse include:

  • Exercising power with an unauthorized purpose. Objective test: If unauthorized, then unlawful, regardless of intention.

  • Exercising power using an unauthorized procedure to achieve something that may otherwise be necessary. This is a denial of administrative procedure.

  • Exercising power using ulterior motives (acting in fraudem legis). Presupposes a fraudulent intention, which may not be present in all forms of abuse of power.

Exercise of Power in Bad Faith

The administrator must exercise power in good faith (bona fide) and consciously apply their minds to all requirements for valid or just administrative action. The opposite is bad faith (mala fide), which in the narrow sense it refers to fraud, dishonesty or corrupt action and in the wider sense to the wrongful use of power. A deliberate disregard of the basic requirement that public power must be exercised in the public interest.

The Constitutional Right to Reasonable Administrative Action

Section 33(1) of the Constitution and PAJA requires that administrative action is reasonable. PAJA's wording suggests a reintroduction of the traditional gross unreasonableness standard.

Wednesbury unreasonableness or the “Wednesbury test", as detailed by Lord Greene, says that if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere.

The Constitutional Court in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs clarified that reasonableness must be construed consistently with the Constitution, such that an administrative decision will be reviewable if it is one that a reasonable decision-maker could not reach.

Factors for Determining Reasonableness:

a. The nature of the decision.
b. The identity and expertise of the decision-maker.
c. The range of factors relevant to the decision.
d. The reasons given for the decision.
e. The nature of the competing interests involved.
f. The impact of the decision on the lives and wellbeing of those affected.

The courts must ensure that the decisions taken by administrative agencies fall within the bounds of reasonableness but should treat decision-makers with appropriate respect and avoid usurping their functions.

Proportionality

Proportionality requires that in achieving a statutory purpose, the harm to the individual should not be disproportionate to that which the community gains. Can be achieved through: • The suitability of the administrative measure. • The necessity of the measure. • A weighing up of the advantages and disadvantages when considering the end to be attained.

The Common-law rules of natural justice

There has always been uncertainty about the requirement of reasonableness of administrative action. Or, more accurately, the courts have been hesitant to pronounce on the reasonableness or unreasonableness of administrative action through their powers of review.

The courts are reluctant to question unreasonableness and rely on is called the principle of “symptomatic unreasonableness”. The courts' intervention would only take place in cases of gross unreasonableness.

Procedurally Fair Administrative Action

The right to procedural fairness is to be characterized as a right of participation, as defined by Klaaren and Penfold. Procedural fairness does not relate to the merits of the administrative action, but relates to the duty of the administrator to act towards a person in a procedurally fair manner.

  • Procedural fairness improves the quality of decision-making.

  • The better informed the decision-making, the less the potential for resentment and anger on the part of the individual against whom a particular decision has gone.

A fair procedure depends on the circumstances of each case. Both constitutionally – and as a simple requirement – each case of alleged denial of natural justice is fact based.

PAJA and Procedurally Fair Administrative Action (Sections 3 and 4)

Section 3

Section 3 of the Promotion of Administrative Justice Act (PAJA) outlines the procedures for ensuring fair administrative action affecting any person. Key elements include:

  • Contextual and Variable Content: A fair administrative procedure depends on the circumstances of each case.

  • Mandatory Requirements:

    • Adequate notice of the nature and purpose of the proposed administrative action.

    • Reasonable opportunity to make representations.

    • A clear statement of the administrative action.

    • Adequate notice of any right of review or internal appeal, where applicable.

    • Adequate notice of the right to request reasons.

  • Discretionary Requirements: An administrator may:

    • Offer assistance and legal representation in serious or complex cases.

    • Allow the presentation and dispute of information and arguments.

    • Permit personal appearance.

  • Departures from Fair Procedure: Administrators may depart from requirements if it’s reasonable and justifiable, considering:

    • Objects of the empowering provision.

    • Nature, purpose, and need for administrative action.

    • Likely effect of the administrative action.

    • Urgency of the matter.

    • Need to promote efficient administration and good governance.

  • Fair But Different Procedure: If empowered, administrators may follow a fair and different procedure.

Section 4

Section 4 of PAJA addresses administrative actions that materially and adversely affect the rights of the public. It requires administrators to decide whether to:

  • Hold a public inquiry.

  • Follow a notice and comment procedure.

  • Use a combination of inquiry and notice and comment.

  • Follow any fair but different procedure if empowered by a provision.

  • Adopt another appropriate procedure that gives effect to section 4.

Legitimate Expectation

Legitimate expectation comes into play when a decision is taken and it will only be fair towards the affected person that he or she is given the opportunity to be heard. For it to be effective, it must lead to a guarantee for a hearing, but not necessarily to the success of the substantive application. Recognition of legitimate expectation is in line with our case law. In Jenkins v Government of the Republic of South Africa 1996 3 SA 1083 (TK), the court stated the doctrine of legitimate expectation had become part of our common law.

The key elements of legitimate expectations include:

  • The presence of an existing right.

  • A potential right or legitimate expectation. In other words, the rules of fair procedure are extended to those cases where no vested right exists, but only a legitimate expectation of a benefit that may be granted or a benefit that will not be withdrawn before a hearing has occurred.

A legitimate expectation could arise:

  • From an express promise given by the authoritative body.

  • From a regular practice which the claimant of a legitimate expectation reasonably expects to continue.

Procedurally Fair Administrative Action: Constitutional Right and Common-law Origin

Both the interim and 1996 Constitutions guarantee the right to procedurally fair administrative action. The constitutional right to procedural fairness is more comprehensive than the rules of natural justice and may encompass aspects of fair procedure not yet covered by the common law.

Content, scope and application of administratrive validity is derived from:

  • The Constitution and statutory laws (Including PAJA).

  • Statutory interpretation.

  • Common and case law.

The origin of a right of action can be found in The “rules of natural justice”, otherwise known as to The audi alteram partem rule (