The Requirements for the Proper Exercise of General Administrative Powers

Authoritative Powers and Duties: Discusses the powers, duties, and obligations of administrators in public administration, particularly in relation to refugees governed by specific acts and constitutional provisions.
Constitutional Prescriptions: Section 33 of the Constitution highlights the duty of administrators to uphold the right to just administrative action, a principle further defined by the Promotion of Administrative Justice Act (PAJA).
Purpose of PAJA:
- Provides for legal review of administrative actions by courts or independent tribunals.
- Imposes a duty on the state to promote good governance and efficient administration.
- Aims to create accountability, openness, and transparency in public administration.
Administrative Legality: The primary goal is to achieve just administrative action, ensuring operations comply with identified standards rather than just retrospective judicial reviews.

Scope of Power: Defined by the empowering statute or provisions; includes necessary decision-making responsibilities (e.g., granting social grants).
- Judicial Review: Section 6(2)(g) of PAJA allows for judicial review if an administrator fails to make a decision.
Duty to Exercise Power: The exercise must align with legislative purpose, objectives, and not be unlawfully limited by various regulations or policies.
- Implied Powers: Administrative powers might come with ancillary, tacit, or implied powers necessary to fulfill obligations effectively.

Authority Exercise: Powers must be exercised by designated authorities. Unlawful delegation can invalidate the action, as highlighted by the Mathipa v Vista University case, where improper delegation led to an invalid administrative decision.

Constitutional Duty: Section 7(2) mandates the state to respect and promote rights in the Bill of Rights applicable to all entities and administrators.
Judicial Precedents: Cases like Carmichele v Minister of Safety and Security showed the courts affirming state obligations.
Specific Duties: Defined by empowering statutes, e.g., the Department of Agriculture’s duty under the National Environmental Management Act to include socio-economic considerations in decisions.

Definition of Public Function: Public powers are attributed to the state per constitutional allocations and through ordinary legislation (e.g., executing postal services).

Definition: PAJA broadens the definition of public functions to include entities acting under empowerment provisions, emphasizing the public interest nature versus private interests.
Outsourcing: When private entities carry out functions like waste removal on behalf of municipalities, they execute public duties under legislation.

Understanding Powers: Legislative powers, while generally explicit, can contain implicit or ancillary powers necessary for full functionality. Courts interpret these powers contextually, informed by various factors including legislative intent and public impact.
Implied Powers Context: Must not contradict constitutional norms or basic rights.

Nature of Discretion: Administrators have latitude constrained by law, dictated by statutory language (e.g., “shall” vs. “may”).
Types of Discretion:
- Narrow and Wide Discretion: Narrow discretion refers to limited choices based on specific factual prerequisites; wide discretion carries inherent legal boundaries.

Understanding Compliance: Statutory provisions, whether peremptory or directory, must be aligned with legal requirements. Non-compliance seldom invalidates actions unless explicitly defined.
Judicial Guidelines: Courts consider legislative language and intent in determining compliance implications.

Types of Powers:
- Original Powers: Powers retained by legislative bodies that do not undergo administrative review for just actions.
- Delegated Powers: Powers transferred to administrators from a legislative body requiring explicit statutory authority, as detailed in the Immigration Act.
- Delegation Constraint: Discretionary powers typically cannot be delegated.

Distinction in Roles: Executive powers are for policy formulation, while administration focuses on policy implementation. PAJA bridges these with principles of good governance and accountability.
Constitutional Authority: Executive functions, despite being excluded from some PAJA definitions, remain subject to legality under constitutional review norms.

Example of Misapplication: The Mohamed v President case illustrated unlawful administrative actions contradicting provisions, highlighting grounds for judicial review pursuant to PAJA stipulations.