Administrative Law - Decision Making

Decision Making: Administrative Action

Bhagwan v JSE

• A decision involves:
  1. Final application
  2. Investigative process
  3. Evaluative process
  4. Final decision through exercise of statutory or public power

Acts That Do Not Involve a Decision

• Gamevest: Mere receipt of a land claim.
• Kuzwayo: Signing of a declaration to convert a site permit to a right of ownership and signing a deed of transfer.
• Plover’s Nest Investments: Clerical error in a letter.
• Maleka: Clerical error removing a member from register of practitioners is administrative action.

Operation of Law

• Minister of Education and Culture v Louw: Termination of employment under ‘deemed discharge’ provisions is not administrative action. Dismissal didn’t flow from discretionary decision but rather occurred by operation of law.
• Maswanganyi: Reversal of termination of employment by operation of law when essential jurisdictional facts fell away.

Administrative Rulemaking (Regulations)

• Regulations are subordinate legislation and generally excluded from definition of administrative action.
• New Clicks: High court stated that regulations are not administrative action but constitutional court disagreed and suggested that regulations are administrative action.
• Esau: Endorsed approach by constitutional court (New Clicks).

Investigations

• Administrative law treats investigations as preparatory steps; for there to be a decision, there needs to be a measure of finality or completeness.
• SARS v Brown: Preparatory steps do not constitute administrative action.
• Competition Commission v Telkom: Investigations do not adversely affect rights.

Miscellaneous

• Mzamba v Bizana: Voluntary agreement endorsed by administrator is not administrative action.
• Emakhasaseni Community v Minister of Rural Development: Notice setting out amount of compensation as calculated by office of Value-General not administrative action

Overview: Of an Administrative Nature

• Involves application of policy to specific circumstances.
• Exercising administrative power to bring policy into effect.
• Policy making by an elected official is not administrative action.

Sokehla v MEC for Agriculture and Environmental Affairs

• To determine whether a decision is administrative or not, the starting point is determining whether it would constitute administrative action within Section 33 of the Constitution.
• The difference between administrative action and other conduct by organs of state is difficult to draw, so it's done on ad-hoc basis, with need for efficient, equitable, and ethical public administration.
• Requires detailed analysis of nature of public power or function to determine true character.
• No mechanical process.

Grey’s Marine v Minister of Public Works

• Administrative action = conduct of bureaucracy in carrying out daily functions of the State, which necessarily involves application of policy usually after it translation into law.

By Organ of State or Natural or Juristic Person

• Decisions must be made by organ of state or person exercising public power or performing public function.
• Decisions can be taken by public or private entities.
• S239 of Constitution.
• Does not include court or judicial officer.

Public Protector and Auditor General

• Minister of Home Affairs v Public Protector: Remedial action of public protector does not constitute administrative action.
• MEC for Economic Opportunities v Auditor-General: Decision of AG amounts to administrative action because it forms part of public administration, function is to administer (audit organs of state) and doesn’t have broad discretionary power. SCA disagreed, held that did decision not administrative action.

Exercising a Public Power or Performing a Public Function

• President of RSA v SA Rugby Football Union: Not about functionary but rather the function i.e. not important who performs function, but nature of function.

Parliament

• De Lille v Speaker: Parliament cannot exercise administrative action because Acts of Parliament are excluded under definition of administration action in terms of Section 1 PAJA.

Private Entities Exercises Regulatory Powers

• Dawnlaan v JSE: Under statutory duty to act in the public interest, then decisions likely public functions.
• Cronje v United Cricket Board: Organisation operates through private agreements and not because law gives it power then decisions not public functions.
• AAA Investments v Micro Finance Regulatory Council: Participation not voluntary then actions may be public functions.
• Coetzee v Comitis: If there are no alternatives to dealing with body then decisions likely public functions.
• Cronje v United Cricket Board: Organisation gets public money, then likely a public function, if not, decisions not public in nature.
• AAA Investments v Micro Finance Regulatory Council: Power has big impact then likely considered public function.
• AAA Investments v Micro Finance Regulatory Council: Government has some say in operation, likely public function.
• Horse Racing Authority v Naidoo: Organisation affects many people and monopolistic position, likely public function.

Political Parties

• Dube v Zikalala: Generally, decisions of political party not administrative action (private and voluntary).
• Marais v Democratic Alliance: There is public interest in decisions of political parties, but not administrative action.
• Van Zyl v National Party: Decision to recall delegate at National Council of Province is administrative action.

Powers Exercised by Public Bodies in Private Setting

• Cape Metropolitan Council v Metro Inspection Services: Cancellation of contract under common law by municipality is not administrative action.
• Mobile Telephone Networks v SMI Trading: Decision by licensee to invoke S22 of Electronic Communications Act constituted administrative action

In Terms of Constitution, Legislation, or Other Empowering Provision

• Marais v Democratic Alliance: Ultra vires decisions do not constitute administrative action because they lack empowering provision.

That Adversely Affects Rights

• Grey’s Marine: A decision will have the capacity to affect legal rights when it had immediate and direct legal consequences.
• Transnet: Rights are affected include more than constitutional rights.
• Bullock: Term rights not restricted to rights enforceable in court of law.
• Joseph: Rights include public law rights to receive basic municipal services such as electricity.
• Airports Company South Africa v ISO Leisure: No rights adversely affected in terms of investigations.
• Earthlife Africa v Minister of Energy: Ministerial determination that $9600$ MW of new generation capacity would be sourced from nuclear energy adversely affected rights of non-nuclear power producers.

Has Direct, External, Legal Effect

• Direct: Finality in decision taken, to extent that it will have some effect.
• External effect: Have effect beyond internal issues of organisation.
• Pharmaceutical Manufacturers Association v Pres.: Signed law into effect but decision to bring law into effect had external consequences on public i.e. pharmaceutical companies. Even though made within government structures, consequences extend beyond internal affairs.
• Legal effect: Decision of administrator must be legally binding on person whose rights affected.

But Does Not Fall Within Listed Exclusions

• S79 President can either sign bill into law or refer back to parliament
• S85 President and cabinet can implement national policy, develop and execute law or coordinate gov. functions
• S91 President can appoint and dismiss ministers
• S92 Ministers must answer questions and explain policies
• S93 President may appoint deputy ministers
• S98 Acting president
• S99 President can delegate functions
• S100 National gov. can intervene where province fails to perform constitutional duties
• S121 Premier can approve bill or refer back to prov. legislature
• S125 Premier and executive council can implement prov. laws, manage prov. administration and oversee prov. departments
• S126 Premier can assign functions to members of executive council