pbr 324 english study guide- 2012 - learning -...

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WELCOME

Hallo!

I am Prof. Andries Raath and I am your lecturer for the course PBR324. The course

Public Law III is composed of two sections, of which Administrative Law forms one

half. The other half of this course consists of the section Constitutional Law

(PBR314). It is important to note that the section Administrative Law (PBR324) can

only be completed after you have manifested a clear understanding of the first

section, Constitutional Law (PBR314).

I have been lecturing this subject since 1979 and have been attached to the

Department of Constitutional Law and Philosophy of Law at the Free State University

since 1986. The course comprising PBR314 and PBR324 is taught in this

department. Other courses related to administrative law and constitutional law are

Legal Interpretation (ULL214) and Jurisprudence (RGL IV).

Public law is a very important field of study because it deals with the diverse

relationships between the state and legal subjects (both individually and collectively)

in the public sphere. The two segments in this course – constitutional law and

administrative law – are very closely related. Constitutional law deals mainly with the

organisational aspects of public law, and administrative law mainly with the

management functions of government in its relationships with legal subjects. Since

1994, this field of study has received more prominence and currently forms one of

the foundational courses for most other fields of legal study. Prior to 1994, the

leading principle in our constitutional system was the notion of parliamentary

sovereignty, in terms of which the legislative power of Parliament was regarded as

the supreme authority in the public sphere. This principle has been substituted for

that of constitutional supremacy. This means that currently our Constitution is the

supreme authority in the legal system. For this reason, PBR III and its related

subjects have become most important areas of study for all branches of the legal

profession.

I hope that you will find this course enriching and stimulating. May you have a fruitful

year of study.

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LECTURER E-MAIL

[email protected]

051-401-2620 (prof. Raath) / 051-401-9267 (assistant)

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Course Details

Prescribed textbooks

The prescribed textbook for this course is

� Burns, Y; Beukes, M; 2006. Administrative Law under the 1996 Constitution 3rd edn. Durban:

Butterworths.

All page and paragraph references to the textbook are to these works. All references to the third

edition (2006) will be indicated using brackets [ ]

Secondly, students must obtain the accompanying workbook:

� Beukes, M., Burns, Y. & Viljoen, H. 1999. Workbook for Administrative Law. 2nd edn. Durban:

Butterworths.

Please note that an Afrikaans version is also available: Werkboek vir Administratiefreg.

All activities contain references to this workbook.

It is compulsory for students to have one of the textbooks and the workbook.

Additional reading

The University of the Free State Library and Information Services will provide access to the following

compulsory supplementary readings on eLibrary:

� Administrateur Transvaal v. Traub 1989 4 SA 731 (A).

� Administrator Cape v. Associated Buildings 1957 2 SA 317 (A).

� Arnold v. Race Classification Appeal Board 1967 2 SA 267 (C).

� Attorney-General OFS v. Cyril Anderson Investments 1965 4 SA 628 (A).

� Baloro v. University of Bophuthatswana 1995 4 SA 197 (B).

� Basson t/a Repcomm Community Repeater Services v. Postmaster-General 1994 3 SA 224

(SEC).

� BEF v. Cape Town Municipality 1983 2 SA 387 (C).

� Bekker v. Administrateur, Oranje-Vrystaat 1993 1 SA 829 (O).

� Botha v. Stadsklerk van Middelburg NO 1975 4 SA 241 (T).

� Broadway Mansions (Pty) Ltd v. Pretoria City Council 1955 1 SA 517 (A).

� Burns, Y. 2002. “Do the principles of administrative justice apply to the domestic bodies or

voluntary associations such as the South African Rugby Football Union and the United Cricket

Board?” SA Public Law 17. pp. 372-381.

� Carr v. Jockey Club 1976 2 SA 717 (W).

� Claude Neon Ltd v. Germiston City Council 1995 3 SA 710 (W).

� Claude Neon v. City Council of Germiston 1995 3 SA 710 (W), 1995 5 BCLR 554 (W)

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� Constitutional Court of South Africa. n.d. [Online] Available: http://www.concourt.gov.za/.

The study of decided cases forms a very important part of this course. All cases of the

Constitutional Court can be obtained from this website.

� Constitution of South Africa Act 108/1996. [Online] Available:

http://www.polity.org.za/html/govdocs/constitution/saconst.html.

� The Constitution of South Africa forms a most important source of reference in this course. This

source must be downloaded chapter by chapter. It is also available from the Government

Printers in Pretoria

� Dawnlaan Beleggings v. Johannesburg Stock Exchange 1983 2 SA 344 (W).

� Directory Advertising Cost Cutters v. Minister for Posts, Telecommunications and Broadcasting

1996 3 SA 800 (T).

� Directory Advertising Cost Cutters v. Minister for Posts, Telecommunications and Broadcasting

1996 3 SA 800 (T).

� Du Preez v. Truth and Reconciliation Commission 1997 3 SA 204 (A).

� Eskom v. Kruger 1991 3 SA 557.

� Fraser v. Children’s Court, Pretoria North 1997 2 SA 218 (T), 1996 8 BCLR 1085 (T).

� John Wilkinson and Partners v. Berea Nursing Home 1966 1 SA 791 (N).

� Langeni v. Minister of Health and Welfare 1988 4 SA 93 (W).

� Lunt v. University of Cape Town 1989 2 SA 438 (C).

� Middelburg Rugby Club v. Suid-Oos Transvaalse Rugby-Unie 1978 1 SA484 (W).

� OVS Vereniging vir Staatsondersteunde Skole v. Premier, Oranje Vrystaat 1996 2 BCLR 248

(O).

� Promotion of Administrative Justice Act 3/2000. [Online] Available:

http://www.polity.org.za/html/govdocs/legislation/2000/act3.pdf. (abbreviated as PAJA)

� R v. Jopp 1949 4 SA 11 (N).

� R v. Pretoria Timber Company (Pty) Ltd 1950 3 SA 163 (A).

� Roman v. Williams NO 1997 9 BCLR 1267 (C).

� Roodepoort Settlement Committee v. Retief 1951 1 SA 73 (O).

� S v. Prefabricated Housing Corporation (Pty) Ltd 1974 1 SA 535 (A).

� SA Medical and Dental Council v. McLoughlin 1948 2 Sa 355 (A).

� Trust Bank van Afrika Bpk v. Eksteen 1964 3 SA 402 (A).

� Tsenoli v. State President of the Republic of South Africa 1992 3 SA 37 (D).

� University of Cape Town v. Ministers of Education and Culture 1988 3 SA 203 (C).

� University of the Free State: Faculty of Law. n.d. [Online] Available:

http://www.uovs.ac.za/container.php?&code=FAKUL_TMPL&faculties_id=03&origin=FAKUL/ap

peals/index.htm.

Reportable decisions of the Supreme Court of Appeal dating from November 1998 can be

accessed at this website. You can also gain access to other websites linked to that of the UFS

through this website.

� University of Pretoria v. Minister of Education 1948 4 SA 79 (T).

� Van Huyssteen v. Minister of Environmental Affairs and Tourism 1996 1 SA 283 (C).

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RECOMMENDED READING

A number of important publications on administrative law have appeared over the last couple of years.

A standard work on this subject is

� Baxter, L. 1984. Administrative Law. Cape Town: Juta.

This is a very practical work and very suitable for practising lawyers.

A more recent work, also reflecting the changes brought about by the 1996 Constitution, is

� Devenish, G.E., Govender, K. & Hulme, D. 2001. Administrative Law and Justice in South

Africa. Durban: Butterworths.

It is advisable to gain access to the monthly legal periodicals to increase your general knowledge of

law and to update recent developments in the field of public law. A most interesting monthly legal

journal is De Rebus. This is the attorney’s monthly journal and can be accessed via the Internet for

the specific month that it is published for free. Under the heading “Update”, there are discussions of

recent case law, which are very useful for your study purposes. You will find these sources at the

following website:

� De Rebus. n.d. [Online] Available: http://www.derebus.org.za.

COURSE OVERVIEW

This course has three broad segments or fields of study for dealing with the work of the section on

administrative law:

1. A study of the general principles and concepts in administrative law (Unit 1)

2. The requirements for valid administrative acts (Units 2 and 3)

3. The procedural administrative law, which deals with the principles and procedures when the

acts of administrative bodies are attacked for reasons of ultra vires or other forms of illegality –

this also includes control of administrative acts and state liability (Units 4 and 5)

In this course, the focus in the first segment (Unit 1) will be on the basic principles, concepts,

definitions, and rules of administrative law in South Africa. Firstly, this implies that students must

study the concepts used in this course before they will be able to follow the discourses on the

principles underlying this field of study. Secondly, students need to have a thorough background of

the 1996 Constitution and the administrative law principles contained in the Constitution. Please note

that in terms of the Founding Provisions of the Constitution (section 1), the Republic of South Africa is

one sovereign, democratic state founded on (a) human dignity, the achievement of human rights, and

freedoms; (b) non-racialism and non-sexism; (c) supremacy of the Constitution and the rule of law;

and (d) universal adult suffrage, a national common voters’ roll, regular elections, and a multiparty

system of democratic government to ensure accountability, responsiveness, and openness. Section 2

states the supremacy of the Constitution by declaring the Constitution the supreme law of the Republic

and adding that law or conduct inconsistent with it is invalid and that the obligations imposed by it

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must be fulfilled. These provisions are foundational to the study of the Constitution and the

administrative law principles contained in it. The constitutional text was submitted to the Constitutional

Court for its certification. The two decisions dealing with the certification of the constitutional text

provide important guidelines for understanding the philosophy behind the 1996 Constitution. The

citations of these two decisions are Certification of the Constitution of the Republic of South Africa,

1996 1996 (10) BCLR 1253 (CC) and Certification of the Amended Text of the Constitution of the

Republic of South Africa, 1996 1997 (1) BCLR 1 (CC). The final Constitution became enforceable on

4 February 1997. The main components of the first chapter are the definition, place, and sources of

administrative law, the meaning of the basic concepts used in administrative law, the impact of the

Constitution on administrative law, administrative law relationships, and the various acts performed by

the administrative organs of state.

The second segment (Units 2 and 3) deals with the requirements for valid administrative action, the

constitutional requirements of administrative justice, and the various principles of legality from our

common law. The main emphasis will be on the contents and implications of administrative justice in

terms of the 1996 Constitution and the effects of this.

The third segment (Units 4 and 5) will focus exclusively on administrative procedural law. This

entails an analysis of the various forms of control of administrative acts, the nature and extent of the

courts’ powers to effectively control administrative performance, the nature and implications of the

various forms of control, and finally, the principles of state liability for illegal acts of the state, which

may cause damage to individuals or private institutions or bodies.

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Assessment and Assignments

PBR 324

Werksopdragte en assesseringsgeleenthede:

Assignments and assessment opportunities:

Van kampusstudente word verwag om die eerste amptelike toets te skryf. In plaas van

die tweede toetsgeleentheid moet kampusstudente die tweede werksopdrag hierby

aangedui voltooi volgens die riglyne wat verstrek word. E-Leerstudente moet beide

werksopdragte volgens die voorskrifte voltooi.

Campus students are required to write the first official test. In the place of the second

test opportunity campus students must complete the second assignment according to

the criteria. E-Learn students must complete both assigments according to the criteria.

Werksopdrag 1: Slegs E-Leerstudente

Assignment 1: E-Learn students only

Skryf 'n opstel van minstens 3 000 (drie duisend) woorde oor die opdragte vervat in

Aktiwiteite 1, 2, 3 en 4 van die Gids.

Write an assignment of at least 3 000 (three thousand) words on the instructions

contained in Activities 1, 2, 3, and 4 of the Guide.

Werksopdrag 2: Sowel E-Leerstudente as Kampusstudente

Assignment 2: Both E-Learn and Campus students

Skryf 'n opstel van minstens 3 000 woorde oor die betekenis en rol van audi alteram

partem op die terrein van prosedurele billikheid aan die hand van regspraak in die Suid-

Afrikaanse Administratiefreg met besondere verwysing na die Wet op Bevordering van

Administratiewe Regverdigheid.

Write an essay of at least 3 000 (three thousand) words on the role of audi alteram partem

in the domain of procedural fairness in the court decisions of South African

Administrative Law with particular emphasis on the Promotion of Administrative Justice

Act.

Beide werksopdragte moet voltooi word in ooreenstemming met die volgende kriteria /

Both assignments must be completed according to the following criteria:

1. Die werksopdrag moet volledige voetnootverwysings en 'n deeglike bibliografie bevat.

Die styl van die Tydskrif vir Resgwetenskap se redaksionele riglyne moet gevolg word.

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The assignment must be thoroughly footnoted and contain a full bibliography. The

editorial style of the Journal for Juridical Science must be followed.

2. Verwysings na die studiegids en internet-bronverwysings mag nie in die werkrsopdrag

voorkom nie. Minstens 10 hofuitsprake, 8 tydskrifartikels en 5 akademiese handboeke

moet geraadpleeg word.

References to the study guide and internet sources may not appear in the assignment. At

least 10 court cases, 8 scholarly articles and 5 academic handbooks must be consulted.

3. In die geval van onregmatige gebruik van mede-studente se werk en/of plagiaat sal

dissiplinêre stappe geneem word. In the event of unlawful use of the work of other

students and/or plagiarism disciplinary steps will be taken.

4. Alle werksopdragte moet voor 12:00 die nag op die genoemde datum via Blackboard

ingehandig word. All assignments must be handed in via Blackboard before 12 o’clock at

night on the said date.

5. Die werksopdrag vir kampusstudente moet voor einde September 2012 ingehandig

word. The assignment for campus students must be handed in before the end of

September 2012.

6. E-Leerstudente handig hulle werksopdragte in op die datums soos deur E-Leer vereis.

E-Learn candidates must hand in their assignments on the dates stipulated by E-Learn.

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EXAM DETAILS

The exam paper will total 70 marks. The scope of the work covered for exam purposes will be the

following:

� Study all the work contained in the units of this course (that is, the whole textbook with the

workbook , including the questions and standard-type answers given in this book).

� Some chapters in the textbook also have to be studied as a whole. Chapters 6 and 7 {13} have

to be summarised by students in order to enable them to answer questions of more than 15

marks each on the principles contained in those chapters. This, in effect, means that students

may be required, in addition to the shorter questions posed in the w orkbook , to write an

essay-type answer covering the whole spectrum of work contained in those chapters.

� Normally, however, questions in the exam paper will fall in the category of 6 to 13 marks.

� Students are required to refer to case law throughout where applicable. This means that

students have to identify the relevant cases or cases applicable to a particular segment of the

work or problem under discussion and to apply the relevant principle or argument from a

decided case in point to the legal issue involved. Always underline references to decided

cases so that these citations can be easily followed.

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UNIT 1

General Introduction to, and Basic Principles of,

Administrative Law

INTRODUCTION

The layout of Unit 1 is as follows:

Unit 1.1: General Introduction

Unit 1.2: Definition of Administrative Law

Unit 1.3: The Sources of Administrative Law

LEARNING OUTCOMES

After completing Unit 1, you should be able to do t he following:

� Define all concepts and words you will come across in this unit: administrative law,

administration, Constitution, rule of law, constitutionalism, the constitutional state, constitutional

supremacy, democracy, executive, government, judiciary, and other important terminology

contained in Chapter 1 of your textbook

� Define and give an explanation of what is meant by “administrative law”.

� Know the basic meaning of the concepts used in this course.

� Understand how these basic concepts are interrelated.

� Understand the meaning of these words and concepts in the Constitution.

� Distinguish administrative law from other branches of law, including constitutional law, criminal

law, and private law generally.

READINGS

Prescribed reading

• Burns 2006 p. 10-13;

27-29; 38-41; [29-64]

41

49, 53, 54, 75

120-121

201-214; 263-265

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UNIT 1: General Introduction to, and Basic

Principles of, Administrative Law


This unit is based on Chapter 1 of the textbook. This is important in order to know the broad approach

followed in the reading material.

You will need approximately seven hours to complete this unit.

Introduction

This segment of the work deals primarily with the basic concepts used in the field of

administrative law (see course overview). The aim is to familiarise you with the basic

concepts used in this field of study and to equip you with a basic understanding of the

meaning of words used in the Constitution. Furthermore, it lays the basis of your framework

of reference in this field of study.

Administrative law forms part of public law and, as such, is reflective of the state’s

relationship towards individuals and private bodies. In order to know the conceptual “tools”

for operating in this field of study, students must understand the meanings of words and

concepts used.

The words and concepts of primary importance in thi s course are the following:

� Administration / public administration [p.12-13]

� Bill of Rights [p.49]

� Constitution [p.27-28]

� Legitimacy of the Constitution ?

� Constitutionalism [p.28-29]

� The constitutional state [p.28-29]

� Constitutional supremacy [p.27-28

� Democracy ?

� Executive [p.41]

� Government [p.41]

� The judiciary [p.120+121]

� Just administrative action [p.201-214]

� The legislature [p.38-41]

� The limitation clause [p.54]

� Parliamentary sovereignty [p.75, 263-265]

� The Rechtstaat [p.29, 64]

� The rule of law [p.20, 64]

� State [p.12]

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1. Administration / public administration

Read the textbook; [10-13]

Take note of the fact that the administration is the executive branch of government (excluding

the cabinet) and is mainly responsible for the implementation of policy. It is also important to

note that “administration” could mean either officials in state departments at all levels of

government, or public bodies and enterprises that perform public functions.

Do question 4 in the workbook.

2. Bill of Rights

Read the textbook p. [49]

This term will also be discussed in more detail in the section dealing with constitutional law. It is

important to note that a bill of rights sets standards for, and places limits on, government action

affecting individual interests. Section 7(1) of the Constitution states that “This Bill of Rights is a

cornerstone of democracy in South Africa. It enshrines the rights of all people in our country

and affirms the democratic values of human dignity and freedom”.

3. Constitution

Read the textbook. [27-28]

Take note of the fact that our country has a written Constitution that “is the supreme law of the

Republic: law or conduct inconsistent with it is invalid” (section 2). This article forms the basic

principle of our constitutional dispensation. The effect of this is that the Constitution is elevated

above all legislation in the Republic and that any law in conflict with the Constitution may be

declared invalid by the courts. Under the previous constitutional dispensation, the jurisdiction of

the courts to test administrative action could be excluded by means of so-called ouster clauses.

The inclusion of measures in the Constitution that guarantee the right to approach courts of law

ensures administrative justice through judicial control of administrative acts.

A further implication of section 2 is that all authority of the state is subject to law and does not

operate above the law. This includes the principle that the government receives its powers from

the Constitution and is bound by the requirements of the Constitution. The inclusion of section

33 in the Constitution – the section dealing with administrative justice – changed our

administrative law system considerably. This action determines the sphere within which the

administration must function. This section ensures the right to just administrative action and

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includes all the rules, principles, and regulations that determine administrative acts and the

measure by which all administrative acts can be tested.

4. Legitimacy of the Constitution

Study the textbook. [Not specifically addressed]

Please focus on the fact that Burns says that the 1996 Constitution is legitimate because it

satisfies a number of criteria, the most important criteria being that it establishes a sovereign,

democratic, and constitutional state based on universally accepted values and because it

contains a Bill of Rights that protects the individual from exercise of state power.

5. Constitutionalism

Study the textbook. [28-29]

This means a constitutional state founded on law. This entails that the power of the state is

defined and limited by law to protect the interests of society.

6. The constitutional state

Study the textbook. [28-29]

A constitutional state is a state in which constitutionalism prevails, in other words, a state in

which law is supreme. Burns enumerates a number of the most important elements

presupposed by the term “constitutional state”.

7. Constitutional supremacy

Study the textbook [27-28]

Please note the exposition under “Constitution” above. As stated above, this principle has now

taken the place of that of “parliamentary sovereignty”. Although Parliament is the highest

legislative body in a system of constitutional supremacy, it is no longer the highest organ of

state that determines the existence of individual rights.

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8. Democracy

Study the textbook. [Not specifically addressed]

The underlying philosophy of the Constitution is apparently the view that government is “of the

people, by the people, and for the people”. Burns states that this implies that government takes

place with the consent of the people and is geared towards the interests of the people. It also

entails that the legislature is made up of representatives elected by the people and that the

implementation of laws should be subject to clearly defined controls.

9. Executive

Study the textbook. [41]

Section 85 of the Constitution provides that the executive branch of the Republic vest in the

president and members of the cabinet. This is also the meaning of “executive” that will be used

in this work.

10. Government

Study the textbook [41]

One must be careful not to confuse the structures of government with the activities of governing.

Some authors believe that the “state” refers to a permanent juristic entity, while the term

“government” refers to the temporary bearer of the state’s authority at a given point in time.

11. The judiciary and judicial control


The judiciary in our country consists of the Constitutional Court, the High Courts and

magistrate’s courts, and special courts. Their function is to determine what the law is and to

apply the legal principles involved in given cases. Although the Constitutional Court is the

highest court in all constitutional matters, the Supreme Court of Appeal and the High Courts

also have jurisdiction over constitutional issues. The Supreme Court of Appeal is the highest

court of appeal in matters not involving the Constitution.

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12. Just administrative action


This is a most important section of the work, and you are required to study the meaning and

implications of these concepts very carefully. This section has now become the framework

within which the principles of administrative legality fulfil their functions. Burns goes as far as to

state that this concept now “embodies” all the principles of administrative legality, in other

words, contains all the requirements for valid administrative action. The constitutional section

that gives expression to this right is section 33 of the Constitution. It states that everyone “has

the right to administrative action which is lawful, reasonable and procedurally fair”.

Furthermore, it is stated that everyone “whose rights have been adversely affected by

administrative action, has the right to be given written reasons”.

13. The legislature


This term refers to the three levels on which legislation is passed. This includes the national

legislature (parliament), which makes laws for the whole country, the provincial legislatures,

which make laws for matters falling within the functional areas listed in Schedules 4 and 5 of the

Constitution and matters assigned to the provinces by national legislation, and local government

legislatures (municipal councils), which make by-laws for matters within their jurisdiction.

14. The limitation clause

Study the textbook [54]

In our legal system, no rights are absolute. By their very nature, rights are subject to inherent

limitations, general limitation clauses, specific limitations, and internal modifiers. Note the

meaning of each of these limitations for understanding the limitations to which the Bill of Rights

in our Constitution is subject.

15. Parliamentary sovereignty

Study the textbook [75, 263-265]

This term refers to the principle in some legal systems that accept the supremacy of parliament.

It usually refers to the idea that parliament may enact any laws it wishes and that no court may

test the substance of parliamentary statutes against standards such as fairness and equality.

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16. The Rechtstaat

Study the textbook [29, 64]

This concept expresses the principles contained in the German constitutional system, namely,

those of democracy and social federal state. A distinction is usually drawn between the formal

characteristics of the Rechtstaat concept, namely, the embodiment of the doctrine of separation

of powers, recognition of “checks and balances” between the various branches of government,

the principle of organs of state bound by the Constitution, legal certainty, and access to

independent courts of law. On the material side, this term refers to legal values that ensure that

substantive justice is accomplished. Burns states that the South African Constitution meets the

requirements of both the formal and the material Rechtstaat notions.

17. The rule of law

Study the textbook [20, 64]

The British constitutional author, Dicey, formulated the traditional concept of the rule of law. To

him, it meant the absence of arbitrary power, equality before the law, and the liberties of the

individual. The 1996 Constitution gives expression to these same principles.

18. State

Study the textbook p. [12]

The term “state” refers to a social structure having a specific geographical area, a community of

people living within that territory, a legal order to which the community is subject, an organised

system of government to uphold the legal order, and a certain measure of separate political

identity (sometimes called “sovereignty”).

Activity 1

Take the Constitution, and determine how many times each of the terms above

appears in the text. What is the context within which these terms are used? Are these

terms interrelated – for example, is it possible to have human rights without

democracy? Is it possible to have democracy without a bill of rights?

The terms you have looked at are very closely interrelated. Democracy, human rights, and

administrative justice form a very important interrelated network, which ultimately ensures

justice in the public law order.

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Activity 2

Read section 239 of the Constitution. It states that “‘organ of state’ means (a) any

department of state or administration in the national, provincial or local sphere of

government; or (b) any functionary or institution (i) exercising a power or performing a

function in terms of the Constitution or a provincial Constitution; or (ii) exercising a

public power or performing a public function in terms of any legislation, but does not

include a court or a judicial officer”. Study the main components of this section, and

compose a definition for “organ of state”.

Activity 3

Give a definition of “administrative law”. For purposes of your definition, also use the

approaches by the court in the following cases: Nieuwoudt v. Truth and Reconciliation

Commission 1997 (2) SA 70 (SE); Nephawe v. Premier, Limpopo Province, and

Another 2003 (5) SA 245 (T), and Hayes and Another v. Minister of Finance and

Development Planning, Western Cape, and Others 2003 (4) SA 598 (C).

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Unit 1.2: Definition of Administrative Law

Study Chapters 1-2 of the textbook

Learning outcomes

After completing Unit 1.2, you must be able to do t he following:

� Define administrative law. [p.3]

� Explain the distinction between private law and public law. [p.16-17]

� Define government authority. [p.167-168]

� Explain the concept “state administration”. [p.10-13]

� Know to what extent the introduction of the 1994 and 1996 Constitutions influenced

administrative law. [p.3]

� Appreciate the implications of the fact that our Constitution includes a Bill of Rights for

administrative law in practice. [p.49-59]

� Appreciate the implications of administrative law in the constitutional state. [p.28-29]

� Know what the term “organ of state” means within the definition of administrative law. [p.93-94]

� Know how the concept of “state administration” relates to “administrative action” and

“administrative justice” in terms of the Constitution. [p.10-13]

� Apply the principles contained in the judgement of Van Huyssteen v. Minister of

Environmental Affairs and Tourism 1996 1 SA 283 (C) to the following issues:

• How many organs of state are involved in this case? Substantiate your answer.

• Does the rezoning by the Western Cape Administration constitute “administrative action”?

• Does Mr Van Huyssteen’s action against the Western Cape Administration constitute

administrative action?

� Determine whether the President of the Republic and the premier of a province are “organs of

state”.

� Determine whether the executive council of the province and local authorities are “organs of

state”.

� Determine whether the calling for tenders by local authorities, relating to the erection and

upkeep of street signs, constitutes “administrative action”.

Activity 1

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Look at the definition of organs of state above, and read the court decision in Claude Neon

Ltd v. Germiston City Council 1995 3 SA 710 (W). Determine which public bodies referred

to in the case are organs of state. To what extent are they subject to the principles of

administrative justice?

Activity 2

Read the cases of Baloro v. University of Bophuthatswana 1995 4 SA 197 (B) and

Directory Advertising Cost Cutters v. Minister for Posts, Telecommunications and

Broadcasting 1996 3 SA 800 (T). Make a summary of the test applied in each case for

determining what an organ of state is. With which of the two do you agree?

Activity 3

Read the case of Roman v. Williams NO 1997 9 BCLR 1267 (C) , and indicate the relevance

of this case to the issues dealt with so far.

Activity 4

Answer questions 1 to 10 in the workbook.

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Unit 1.3: The Sources of Administrative Law

Chapter 3 of the 2006 edition and Chapter 3 of the workbook.

You will need approximately five hours to complete this unit.

1. The identification of the sources of administrat ive law

Read the textbook [73-92] and study the various categories of sources that function in

administrative law.

Study the workbook p. 17, and prepare a list of the sources enumerated in the answer to

question 1.

Please note that the sources of administrative law are subject to the Constitution. In the case of

Roman v. Williams NO 1997 9 BCLR 1267 (C), the court said that the constitutional test for

reasonable administrative action has replaced the common law test. This means that the

constitutional criteria relating to reasonable administrative action are now applicable to

administrative action in all its manifestations.

See question 11 of Activity 1 in the workbook.

2. Distinguishing between original and subordinate legislation

Read question 12 (on p. 18) in the workbook.

After studying the contents of the answer to question 12, express (in your own words) why

municipal laws are no longer deemed to be subordinate legislation. State your reasons with

reference to the relevant sections of the Constitution.

3. The status of provincial ordinances

Read question 13 (on p. 19) in the workbook.

Although provincial ordinances could not be tested by the courts under the pre-1994

dispensation, today our courts have the same powers to test these measures as they have in

the case of parliamentary legislation.

21

4. The relevance of the interpretation of statutes for

administrative law

Study question 14 on pp. 19-20 in the workbook.

5. Is administrative law exclusively concerned with the judicial

review of administrative acts?

Read question 15 on p. 20 in the workbook.

Answer this question, taking into account Wiecher’s remark that judicial review on its own does

not provide a true reflection of the state administration.

6. The doctrine of precedent

Read the textbook [87-89]

Refer to question 16 in the workbook.

Focus particularly on the issue of whether this doctrine plays a meaningful role in administrative

law and what the field of application of this doctrine in our law is.

7. The English and Roman Dutch law as sources of ad ministrative

law

Read the textbook [89]

Study question 17 in the workbook.

English law and Roman Dutch law serve as South Africa’s common law. This means that our

law was influenced, over a substantial period, by principles from both these systems of law.

Identify the relative impact of common law principles on South African administrative law.

22

8. “Impure legislation”

Study the textbook [86 par. 4.1.7]

Refer to question 18 on pp. 21-22 in the workbook.

Two decided cases provide good guidance as to the role and function of impure legislation in

administrative law. Study the cases of S v. Prefabricated Housing Corporation (Pty) Ltd

1974 1 SA 535 (A) and Broadway Mansions (Pty) Ltd v. Pretoria City Council 1955 1 SA

517 (A). You are advised to make yourself a nice summary of the aspects dealing with “impure

legislation” in these cases.

9. Administrative custom (practice)

Read the textbook [86, 91 par 4.1.8.]


In our law, specific requirements are set for administrative practices to become law. Take

specific note of the meaning of the terms usus, opinio, and communis opinio necessitate. The

case of R v. Detody 1926 AD 198 illustrates the fact that administrative practice may limit the

general meaning of words.

10. Estoppel


Read the judgements in Roodepoort Settlement Committee v. Retief 1951 1 SA 73 (O),

Trust Bank van Afrika Bpk v. Eksteen 1964 3 SA 402 (A) , and Bekker v. Administrateur,

Oranje-Vrystaat 1993 1 SA 829 (O).


In our law, the doctrine of estoppel is not applicable to administrative bodies, since this would

have the effect of granting powers to these bodies that they do not legally possess. However,

our courts have allowed this doctrine where internal irregularities were present and no prejudice

to the public interest could result. The judgement in the Eksteen case does, however, open the

possibility for a more extended application of the doctrine of estoppel. In the light of these

comments, read the judgement in the Bekker case, and express your own views on this matter.

23

Do you think the new Constitution has opened the possibility of a more extended application of

estoppel in our law?

Activity 1


24

UNIT 2

Administrative Law Relationships and Administrative Acts

INTRODUCTION


Unit 2.1: Administrative Law Relationships

Unit 2.2: Administrative Acts

LEARNING OUTCOMES


� Distinguish between the administrative law relationship and private law relationships.

� Illustrate the application of the principles for distinguishing between public and private law

relationships by using practical examples.

� Understand and apply the rule delegatus delegare non potest.

� Know what the delegation of power means.

� Apply the various principles pertaining to delegation of powers within various public law

relationships.

� Know the effects of delegation of power by way of mandate.

� Distinguish between general and individual relationships in public law.

� Identify the criteria applicable to determine whether administrative law applies to the actions of

various bodies.

� Understand the rights, powers, and privileges of individuals in administrative law.

� Explain the distinction between various administrative acts.

� Appreciate and know the impact of the 1996 Constitution on the various types of administrative

acts.

� Know the characteristics and implications of the various administrative acts.

� Understand and apply the four tests in determining whether an administrative act may be

classified as an administrative act.

� Understand the relevance of quasi-judicial acts.

� Explain what a purely administrative act is.

� Understand and explain the difference between quasi-judicial and administrative acts.

� Practically evaluate the nature of various acts promulgated in the Government Gazette.

� Discuss whether a by-law passed by a local government must comply with the requirements of

administrative justice as laid down in the Constitution.

25

READINGS

Prescribed reading

• Burns (2006) chapter 4-5

26

UNIT 2: Administrative Law Relationships and

Administrative Acts

Unit 2.1: Administrative Law Relationships

This unit is based on Chapter 4 of the workbook and [Chapter 4 pp. 93-104]

You will need approximately seven hours to complete this unit.

What is an administrative law relationship?


Prepare yourself a compact definition of what an administrative law relationship is.

It is important to note that administrative law relationships do not only exist between

authoritative bodies and private individuals, but also between government organs inter se

(between themselves).

What distinguishes the administrative law relations hip

from the private law relationship?

Read the textbook. [100-105]

Activity 1

Answer question 21 in the workbook.

The judgement in the case of Basson t/a Repcomm Community Repeater Services v.

Postmaster-General 1994 3 SA 224 (SEC) provides an example of how the courts apply the

criteria to determine whether public law relationships exist or not. Make yourself a compact

summary of the relevant aspects of this case.

27

How does the case of John Wilkinson and Partners v.

Berea Nursing Home illustrate the difference between

public and private law?

Read the judgement of the court in John Wilkinson and Partners v. Berea Nursing Home

1966 1 SA 791 (N).

Activity 2


The rule delegatus delegare non potest

Study the cases of Attorney-General OFS v. Cyril Anderson Investments 1965 4 SA 628 (A)

and BEF v. Cape Town Municipality 1983 2 SA 387 (C).

Activity 3


Also read par [297-302] of the textbook. Prepare yourself a comprehensive summary of the

principles pertaining to delegation in order to write an essay on the issue of delegatus delegare

non potest.

Deconcentration and decentralisation of powers

Read the judgements of the courts in Administrator Cape v. Associated Buildings 1957 2 SA

317 (A) and University of Pretoria v. Minister of Education 1948 4 SA 79 (T).

Activity 4


28

Delegation by way of mandate

Activity 5

Answer question 25 in the workbook as a self-testing exercise.

General and individual administrative law relations hips


Activity 6


Please note that this question could also involve a discussion of the most important

distinguishing characteristics of the general (objective) and individual (subjective) relationships.

Various kinds of administrative bodies


Activity 7


You must be able to identify the various kinds of administrative bodies. You must also be able

to determine to what extent parastatals such as Eskom and Telkom are deemed “administrative

bodies”.

The application of administrative law


29

Activity 8


In order to understand the application of the relevant principles, you are required to study the

following court cases: Carr v. Jockey Club 1976 2 SA 717 (W); Middelburg Rugby Club v.

Suid-Oos Transvaalse Rugby-Unie 1978 1 SA484 (W); Directory Advertising Cost Cutters

v. Minister for Posts, Telecommunications and Broadca sting 1996 3 SA 800 (T); SA

Medical and Dental Council v. McLoughlin 1948 2 Sa 355 (A); and Dawnlaan Beleggings v.

Johannesburg Stock Exchange 1983 2 SA 344 (W).

Rights, powers, and privileges of individuals

Read. [100-102] ?

Activity 9


Please note that the individual’s rights and freedoms in public law will be dealt with more

extensively in the Constitutional section of this course. You are, however, required to have the

background contained in the textbook and workbook.

Activity 10

Read through Chapter 2 of the Constitution, and make a list of rights that are protected.

You must remember, however, that these rights can sometimes be limited. This

means that they can be changed, restricted, or even taken away. But this can only be

done

� if the law that limits a right applies to everybody,

� if there is good reason to limit the right, and

� if limiting the right makes sense in an open and democratic country.

Some rights can also be suspended or taken away for a period during a state of emergency.

Government can only call a state of emergency when the security of the country is threatened

by war, invasion, or revolution, or when there has been a natural disaster (such as a flood).

However, there are some rights, such as the right to life, the right to human dignity, and some of

30

the rights that arrested, detained or accused people have, and that cannot be taken away, even

during a state of emergency.

The rights protected in the 1996 Constitution are a s follows:

� Equality

� Human dignity

� Life

� Freedom and security of the person

� Slavery, servitude, and forced labour

� Freedom of religion, belief, and opinion

� Freedom of expression

� Assembly, demonstration, picket, and petition

� Freedom of association

� Political rights

� Citizenship

� Freedom of movement and residence

� Freedom of trade, occupation, and profession

� Labour relations

� Environment

� Property

� Housing

� Health care, food, water, and social security

� Children

� Education

� Language and culture

� Cultural, religious, and linguistic communities

� Access to information

� Just administrative action

� Access to courts

� Arrested, detained, and accused persons

31

Unit 2.2: Administrative Acts

This unit is based on the textbook, [p.153-272] and Chapter 5 (pp. 33-40) of the

workbook.

You will need approximately ten hours to complete this unit.

1. Various administrative acts

Activity 1


Because the law attaches different consequences to the different types of administrative action,

it is important to draw some basic distinctions between the various categories of acts performed

by organs of state.

2. The impact of the 1996 Constitution

Activity 2


There have not been principal changes in the new Constitutional dispensation with regard to the

various types of administrative acts. An aspect that must be borne in mind is the fact that the

distinction between original legislation and administrative legislative action has now

disappeared.

3. Characteristics of administrative legislative ac ts

Read. [153-156]

32

Activity 3


4. Consequences of administrative legislative acts

Read [153-156]

Activity 4

Answer question 33 and 41 in the workbook.

5. Judicial acts of the administration

Read. [180-181]

Activity 5


6. Quasi-judicial acts

Read the textbook.

Activity 6

Answer questions 35, 38, 39, and 40 in the workbook.

7. Pure administrative acts

Read [181-182]

33

Activity 7

Answer questions 36 and 37 in the workbook.

8. “Ministerial acts”

Read the textbook.

Study the judgement in Botha v. Stadsklerk van Middelburg NO 1975 4 SA 241 (T).

Activity 8


9. By-laws and administrative justice

Activity 9


Please note that by-laws of local government are also subject to the requirements of

administrative justice contained in the Constitution (section 33).

In terms of the 1996 Constitution, local government has received new emphasis.

Explanatory note on the spheres of government

The government of a country is a big job. To make sure it functions properly, it is divided into

national and local spheres.

National government

Deals with matters affecting the whole country. This entails the two most important segments:

1. The National Legislature is also called Parliament. It is made up of the National

Assembly (NA) and the National Council of Provinces (NCOP). Parliament writes laws

(Acts of Parliament) that have to be followed by the whole country.

(i) The National Assembly (NA): The NA has between 350 and 400 members. These

members are chosen during national elections and remain in Parliament for up to

34

five years. This is also called a five-year term. They meet at Parliament in Cape

Town. The rules about who can be a member of the NA are in Chapter 4 of the

Constitution.

(ii) National Council of Provinces (NCOP): The NCOP is made up of 10 people or

delegates from each province. The NCOP represents the interests of the provinces

at a national level. It is involved in writing acts of Parliament that affect the

provinces. It also meets in Cape Town. The NCOP has replaced the old Senate.

(iii) The National Executive (NE): The National Executive is also called the Cabinet.

The body puts laws made by Parliament into operation. Members of the Cabinet

must follow a code of conduct.

Provincial government

Provincial government deals with issues that affect the provinces only. These include the health

services provided by the province, nature conservation in the province, and major roads that run

through the province. There is a provincial legislature to write laws for each province. These

laws have to be followed by people while they are in that province. Provincial legislatures are

also allowed to write provincial constitutions for their provinces. However, like all laws written by

the provincial legislator, provincial constitutions cannot go against the 1996 Constitution. Each

province has a provincial executive to put these laws into operation. These are made up of a

premier and an executive council.

Local government

The local sphere of government is made up of municipalities. Municipalities deal with issues

that affect the local area or municipality that they control. These include electricity, firefighting,

traffic and parking, and many other things. Each municipality has a municipal council, which is

both the legislature and the executive for that municipality. Laws written by a municipal council

are called by-laws. They have to be followed by everyone living in or visiting a local area. By-

laws cannot go against

� the Constitution,

� Acts of Parliament, or

� provincial laws for that province.

One of the important new things about local government in the Constitution is that it says that

local government must see to the development of communities. This means that local

government must not just make sure that people follow the laws, but must also serve the needs

of its community.

10. Multilateral acts

Read. [167-170]

35

Please note that the state’s task was formerly confined to upholding and maintaining the law.

However, in modern times, the state administration’s task has become an all-embracing task of

development. For developmental purposes, the conclusion of contracts between government

and private people and institutions has become a most important field of administrative law

study. Prepare yourself a good summary of the role of contracts in administrative law. An

essay on such a topic could count as much as ten marks.

11. Internal appeal

Read. [269-272]

Prepare yourself a comprehensive summary of the characteristics and functions of internal

appeal. Focus on the judgement of the court in Eskom v. Kruger 1991 3 SA 557 (T) in which

the court held that an internal appeal requires a full and comprehensive evaluation of the law,

facts, and findings.

36

UNIT 3

Just Administrative Action

INTRODUCTION



Unit 3.2: The Constitutional Right to Just Administrative Action

LEARNING OUTCOMES


� Understand the requirements pertaining to the scope of the author’s powers in administrative

law.

� Identify the author of administrative action and the various categories of requirements

applicable to the author’s actions.

� Apply the principles applicable to the delegation of powers by authors of administrative acts.

� Understand and apply the various requirements in respect of the form of administrative acts.

� Identify the requirements pertaining to the authorised purpose of administrative action.

� Understand and apply the requirements pertaining to bona fides.

� Know and apply the requirements involved in procedural fairness and natural justice.

� Know and apply the requirements relating to the furnishing of reasons.

� Know the principles relating to justifiable administrative action.

� Understand the concept of reasonableness, and apply the principles involved in this

requirement.

READINGS

Prescribed reading

• [197-260]

Additional reading

• Promotion of Administrative Justice Act 3/2000

37

UNIT 3: Just Administrative Action


This unit is based on [p.197-213] of the textbook. You will take approximately three hours to complete this unit.

Introduction

This segment of the course aims at familiarising you with the constitutional framework

and the context within which the general requirements for valid administrative action

are dealt with. The following aspects must be borne in mind:

� Administrative acts will only be valid to the extent that they conform to all the requirements set

by law.

� The 1996 Constitution is the basic source that determines the lawfulness of administrative

action.

� Prior to the Constitution, the principles of common law, statutes, and court judgements had to

be used to determine the lawfulness (legality) of administrative action.

� Although the Constitution provides the basic requirements for valid action by organs of state,

these other sources still have to be consulted in order to determine the paradigms within which

these requirements will be interpreted and applied.

The most important sections in the 1996 Constitution that have a bearing on the

issue of lawfulness of administrative action are as follows:

Section 2

� The Constitution is the supreme law.

� Any law or conduct inconsistent with it is invalid.

� The obligations imposed by it on administrative bodies must be fulfilled.

Section 7

� The Bill of Rights enshrines the rights of all people in our country.

� The Bill of Rights affirms the democratic values of human dignity, equality, and freedom.

� The state must respect, protect, promote, and fulfil the rights in the Bill of Rights.

� The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36

or elsewhere in the Bill.

38

Section 8

� The Bill of Rights applies to all law and binds the legislature, the executive, the judiciary, and all

organs of state (see section 239).

� Provisions of the Bill of Rights bind natural and juristic persons.

Section 39

� When a court of law, tribunal, or forum interprets the Bill of Rights, it must promote the values

that underlie an open and democratic society based on human dignity, equality, and freedom.

� When interpreting any legislation and when developing the common law or customary law,

every court, tribunal, or forum must promote the spirit, purport, and objects of the Bill of Rights.

Section 195

� Public administration must be governed by the democratic values and principles enshrined in

the Constitution.

� These principles include the following: the provision of services on an impartial, fair, and

equitable basis without bias; the accountability of public administration, transparency, and

management practices based on ability, objectivity, fairness, and the need to redress the

imbalances of the past to achieve broad representation.

� These principles apply to administration in every sphere of government, organs of state, and

public enterprises.

The Constitution provides the most important criteria for determining the validity of

administrative acts. This makes a thorough understanding of section 33 of the

Constitution a very important priority in your study.

You will also note that Burns deals with the traditional common law requirements of

legality within the framework of section 33 of the Constitution.

The concept of just administrative action

Section 34 of the Constitution provides that everyone have the right to have any dispute that

can be resolved by the application of law decided in a fair public hearing before a court or,

where appropriate, another independent and impartial tribunal. Since section 9 (the right to

equality before the law and to equal protection of the law) and section 35(3) make provision for

a right of access to court, it may be asked why it was necessary to include section 34 of the

Constitution.

It is argued that the significance of this section is situated in the fact that it effectively curtails the

legislative power to promulgate ouster clauses, since the legislative exclusion of judicial review

will no longer be possible. As such, this section is of major importance to the protection of the

39

individual rights listed in Chapter 2 of the Constitution. The inclusion of section 34 and, as we

shall see, section 33, thus ensures administrative justice via judicial scrutiny of administrative

action.

Suggested reading: ; [197-213]

The concept of administrative justice as it is contained in section 33 plays a most important role

in ensuring that the administration adheres to the basic requirements of justice in the

performance of its functions.

� Administrative justice ensures justice for the individual and private bodies in their

relationships with administrative organs of state.

� The administration and all organs of state must comply with all the requirements for valid

administrative action (for example, lawfulness, fair procedures, and reasonableness).

� The courts are the guardians of administrative justice.

� Administrative justice ensures administrative accountability and transparency (or

openness) by administrative bodies and organs of state.

� Administrative bodies and organs of state are bound by the Constitution to promote the

spirit of the Constitution and adhere to the values underlying an open and democratic

society.

� The concept of administrative justice has to be considered within the whole context of the

Constitution (for example, sections such as 32 and 34).

Section 32 states that every person has the right of access to any information held by the state

and any information that is held by another person that is required for the exercise or protection

of any rights. The requirement in terms of section 32, namely, that national legislation had to be

enacted to give effect to this right and that it could provide for reasonable measures to alleviate

the administrative and financial burden on the state, has been met. The Promotion of Access to

Information Act 2/2000 now gives effect to the constitutional right to access of information held

by the state.

This right to information is of particular importance to the judicial review of administrative action.

A person who alleges that his or her right has been infringed by administrative action may call

on the body concerned to supply the information needed that has a bearing on the exercise or

protection of the right in question. An important development is that this right to information will

encompass administrative policy decisions, an area that was generally exempt from public

scrutiny in the past. This right will, however, be tested against limitations set by section 36 (the

limitation of rights).

With reference to Australian law, Peter Bayne says that the object of the Australian (federal)

Freedom of Information Act is “to make available information about the operation of, and in the

possession of, the Commonwealth Government, and to increase Government accountability

and public participation in the process of government”. (See Anon 1993: 197 at 200.) It should

40

be noted that access to documents of an agency or a minister does not require any personal

interest on the part of the individual, and the right of access is based on the right to know, rather

than the need to know.

In American law, the American Freedom of Information Act (5 USC 552) compels government

agencies to reveal information relating to their organisations. Certain categories of information

such as national defence and foreign policy are excluded from the provisions of the Act.

It is clear that section 32 does not provide for access to all administrative bodies or agencies (as

is the case in the United States of America and Australia), and the provision of information is

limited to information that the individual requires for the exercise or protection of his or her

rights.

Section 33 of the Constitution contains the right to just administrative action. It states the

following:

� Everyone has the right to administrative action that is lawful, reasonable, and

procedurally fair.

� Everyone whose rights have been adversely affected by administrative action has the

right to be given written reasons.

� National legislation must be enacted to give effect to these rights and must

• provide for the review of administrative action by a court or,

• where appropriate, an independent and impartial tribunal,

• impose a duty on the state to give effect to the rights enumerated above, and

• promote an efficient administration.

The inclusion of this section in Chapter 2 of the Constitution has brought about a major change

to the whole field of South African administrative law, in so far as it sets the scene for the

exercise of administrative power by defining the limits within which the administration must

operate. As stated elsewhere, section 33 (like all sections of the Constitution) must be

interpreted in the spirit of the Constitution, that is, the promotion of the underlying values and

the promotion of an open and democratic society based on freedom and equality.

The immediate implication of the inclusion of section 33 in the Constitution is that each person

is entitled to lawful administrative action and administrative justice as a fundamental right.

Since this section refers to “everyone” and not to “citizens”, the section should be interpreted to

include aliens, which means that aliens, too, enjoy the protection of individual rights contained in

Chapter 2. Furthermore, this section promotes openness and accountability via the requirement

of the provision of reasons.

A fundamental question is whether section 33 applies to state organs such as government

departments only or whether parastatals and fringe organisations are also included. Prof.

41

Wiechers (at p. 66) suggests that four tests can be used to determine whether an organisation

is an administrative body or not:

1. Whether the body has been instituted by statute

2. Whether it has become part of an established administrative hierarchy

3. Whether it performs public duties and functions

4. Whether the body in question is the bearer of authority

According to Baxter (1984: 160), public enterprises or “fringe organisations”, “parastatals”, and

“quangos” are also governed by administrative law. Examples that may be quoted are the

South African Rail Commuter Corporation Limited, Transnet Limited, the South African

Broadcasting Corporation, the Medical and Dental Pharmacy Boards, Law Societies, the

Development Bank of South African, the Small Business Development Corporation, and the

Council for the Environment. Although voluntary bodies such as jockey clubs have semi-

professional status, they are not administrative bodies – they are not created by statute and do

not possess authoritative power. However, administrative law is applied by analogy to the

internal relationships of these bodies, which are based on authority. An example of this

analogous application of administrative law is found in the disciplinary proceedings of jockey

clubs.

As stated above, section 239 defines an “organ of state” to mean

� any department of state or administration in the national, provincial, or local sphere of

government or

� any other functionary or institution

• exercising a power or performing a function in terms of the Constitution or a

provincial Constitution or

• exercising a public power or performing a public function in terms of any legislation,

but does not include a court or a judicial officer.

Although it is difficult to anticipate how the word “functionary” will be interpreted, it seems as if

the tests laid down by the courts should be adhered to; in other words, an organ of state will

include a department and its officials. Prof. van der Vyver argued that the internal rules of

conduct of institutions other than the state, such as jockey clubs, churches, and law societies,

are excluded from the application of Chapter 2 and the term “organ of state” should be limited to

those bodies that perform state functions.

42

Unit 3.2: The Constitutional Right to Just

Administrative Action

Learning outcomes

After completing Unit 3.2, you should be able to do the following:

� Know that administrative justice emanates from the non-judicial branch of government.

� Understand the basic principles governing the right to just administrative action.

� Understand the meaning of fairness, reasonableness, equality, and proportionality within the

context of administrative justice.

� Know what a system of responsive, responsible, and accountable administrative governance

within the context of administrative justice entails.

� Identify the basic difference between procedural and substantive justice.

� Appreciate the importance of fairness and rationality within the context of administrative justice.

� Know the contents of the duty to act fairly.

What does the Constitutional right to just administ rative

action entail?

Read [p.197-202] of the textbook.

Make a brief summary of the main components of the concept of administrative justice as

defined by Boulle.

How do other systems of law deal with the notion of

administrative justice?

Read [p.198-201] of the textbook.

Please take note that certain parallels exist between the South African notion of just

administrative action and similar concepts in other legal systems. Make a summary in which

you discuss the similarities and differences between the South African notion and those of

similar concepts in Canada, the United Kingdom, and Namibia.

43

What are the main points of difference between sect ion 24

of the interim Constitution and section 33 of the 1 996

Constitution?

Read [201-204] of the textbook, and answer this question. The focus should, however, be on

the most important provisions of section 33.

How should one go about determining the lawfulness of


Study [p.204-21] of the textbook.

Please take note of the fact that the emphasis on lawful administrative action is aimed at the

prevention of the legislative exclusion of the judicial review of administrative action via ouster

clauses and to ensure compliance on the part of the administration with all the requirements for

valid administrative action. The legislation applicable to determine the validity of administrative

action includes the Constitution, enabling legislation, and the Promotion of Administrative

Justice Act 3/2000 (PAJA), as well as the common law requirements pertaining to administrative

action.

Analysis of the common law requirements pertaining to the

author of administrative action

Read the textbook [p.286-287] and [p.291-294].

This set of requirements includes the requirements ratione personae, ratione loci, ratione

materiae, and ratione temporis. Make sure that you know the meaning and application of each

of these requirements for purposes of determining the validity of administrative action.


The various forms of administrative delegation


Why is a basic knowledge of mandate, deconcentration, and decentralisation important for

purposes of the requirements pertaining to the person performing administrative action?

44

Determination of the role of implied/tacit powers i n

administrative law


Please take note that these powers are determined by interpreting the relevant legislation

empowering the administrative organs concerned. On this issue, administrative law and

interpretation of statutes are closely related fields of study.

What do the requirements relating to the form of

administrative acts entail?

Read [313-315] and PAJA section 6(2). Because diverse requirements are covered under this

category, you must make a list of the various requirements that function in this field.

In which ways do statutory rules govern the form an d

procedure of administrative action?

Study the textbook and PAJA section 6(2). Interpretation of statutes also plays a very important

role in this field in so far as the relevant statutory rules must be interpreted to determine their

meaning. Also make sure that you know under which circumstances courts will recognise the

power to grant dispensation.

In which ways do the common law requirements relati ng to

form and procedure of administrative acts play a ro le in our

system of administrative law?

Study the textbook and PAJA section 6(2)

Make sure that you understand the test for reasonable certainty formulated in the case of R v.

Jopp 1949 4 SA 11 (N). Also study the approach of our courts in R v. Pretoria Timber

Company (Pty) Ltd 1950 3 SA 163 (A) , Arnold v. Race Classification Appeal Board 1967 2

SA 267 (C), and Tsenoli v. State President of the Republic of South Africa 1992 3 SA 37

(D).

45

The role played by the requirements relating to the purpose

of the administrative act

Study the textbook and PAJA section 6(2)(e)(ii).

The most important elements to be studied include the rule against the exercise of

administrative action for an ulterior purpose, fraus legis, and the use of unauthorised

procedures to achieve otherwise lawful objectives. Make sure that you study and know each

one of these concepts. The case of University of Cape Town v. Ministers of Education and

Culture 1988 3 SA 203 (C) is an important case in point.

What does procedural fairness entail?

Read the textbook and PAJA 6(2)(c). The aim of this question is merely to give you an

overview of the most important elements of procedural fairness. The following questions will

make an in-depth analysis of this important category of administrative requirement.

Are procedural fairness and natural justice synonym ous?

Study the textbook.

Are substantive and procedural fairness synonymous?


Wiechers and Baxter have different views on the issue of fairness. Which of these views is

preferable? Which of these two views is in line with the judgement in the case of Du Preez v.

Truth and Reconciliation Commission 1997 3 SA 204 (A)?

How does the denial of fair procedure affect the va lidity of


Study the textbook.

Note the approach in the case of Fraser v. Children’s Court, Pretoria North 1997 2 SA 218

(T), 1996 8 BCLR 1085 (T) .

46

What is the meaning and role of audi alteram partem in the

field of procedural fairness?

Study [p.318-331] of the textbook and PAJA section 6(2)(c).

Make sure that you know and understand the various principles pertaining to the opportunity to

be heard and the requirement that the party must be properly informed of considerations that

count against him or her.

How is the requirement of nemo iudex in sua causa applied

in the file of procedural fairness?

Study [p.302-307] of the textbook and PAJA section 6(2)(c).

Also note that this rule covers both actual bias and apparent bias.

How far do the scope and application of procedural

fairness extend?

Study the textbook.

Prior to 1994, our courts mostly held that the rules of natural justice apply only in the exercise of

judicial or quasi-judicial administrative action affecting existing or antecedent rights, privileges,

or freedoms. This has been changed by the case of Administrateur Transvaal v. Traub 1989

4 SA 731 (A) .

What is the meaning and content of the test for leg itimate

expectations developed in the case of Traub ?


A number of court decisions played a most important role in developing, refining, and applying

the concept of legitimate expectations: Langeni v. Minister of Health and Welfare 1988 4 SA

93 (W); Lunt v. University of Cape Town 1989 2 SA 438 (C); Claude Neon v. City Council of

Germiston 1995 3 SA 710 (W), 1995 5 BCLR 554 (W); and OVS Vereniging vir

Staatsondersteunde Skole v. Premier, Oranje Vrystaat 1996 2 BCLR 248 (O) .

47

Does the requirement of procedural fairness apply t o

mechanical administrative acts?

Study the textbook.

Should the rules of natural justice be applied to p reliminary

investigations?

Study the textbook.

Should the audi alteram partem rule be applied to persons

subpoenaed to give evidence?

Study the textbook.

Is the audi principle applicable to every administrative act?

Study the textbook.

Is procedural fairness applicable to administrative

agreements or contracts?

Study the textbook.

How must the requirement of justifiable/reasonable

administrative action be understood?

Read the textbook.

It is important to note that this requirement entails that administrative decisions must be rational,

coherent, and capable of being reasonably sustained, having due regard to the reasons for the

decision, meaning that there must be a rational link between the decision and the reasons given

therefore.

48

What is the role of rationality in administrative d ecision-

making?

Study [p.6-7], [p.382-390] of the textbook.

Why is the requirement of reasonableness so importa nt in

administrative decision-making?


What is the test for proportionality in our law?


Is there a duty to provide reasons for administrati ve decisions in

our law?

Study [p.251-260] and [p.263] of the textbook.

Activity 1

Answer questions 44 to 113 in the workbook. These questions and answers provide a

most useful source of preparation on issues pertaining to administrative action. This

preparation is most important for the purposes of exams.

References

These references simply records the sources referred to in this unit and is not intended as an

additional or recommended reading list. There is no need to consult these sources, but should you

wish to do so, please contact the lecturer to give you some guidance.

� Anon. 1993. “Freedom of information in Australia”. Acta Juridica, 197 at 200. � Baxter, L. 1984. Administrative Law. Cape Town: Juta.

UNIT 4

49

Control of Administrative Action

INTRODUCTION


� Unit 4.1: General Introduction

� Unit 4.2: Judicial Control of Administrative Action

� Unit 4.3: Parliamentary Control and Control by Public Bodies

LEARNING OUTCOMES


� Explain judicial and non-judicial review.

� Know the various ways in which administrative action may be controlled.

� Focus on the role of the judiciary in particular.

� Know and understand the role of the other constitutional mechanisms for controlling

administrative action.

READINGS

• Prescribed reading

• Burns (2006) (Chapter 12)

UNIT 4: Control of Administrative Action


50

This unit is based on Chapter 12, of the textbook.

The aim of this unit is to introduce you to the concepts, ideas, and relevant elements

underlying the concept of control of administrative action.

What does administrative accountability entail?


How does the Constitution provide for the protectio n of individual

rights and the achievement of clean administration?

Study the textbook.

Unit 4.2: Judicial Control of Administrative Actio n

You will need approximately six hours to complete this unit.

How did the 1996 Constitution change the role of th e courts related

to control of administrative bodies?


What is meant by constitutional review?


What is the role of common law review under the dis pensation of

the 1996 Constitution?

Study [p.280, 285-286] of the textbook.

51

May the courts amend administrative action?


By which processes/remedies are administrative acts controlled?


What are the requirements relating to legal remedie s that are aimed

at controlling administrative action?

Study the textbook.

What is the role of the locus standi provisions contained in section

38 of the Constitution and the development of the c riteria pertaining

to locus standi by our courts?

Study the textbook.

What are the nature and consequences of judicial co ntrol over


Study the textbook.

What does the onus of proof within the sphere of ad ministrative law

entail?

Study the textbook.

Activity 1


52

Unit 4.3: Parliamentary Control and Control by

Public Bodies

This unit is based on [p.263-272] of the textbook.

Do you think that Parliament can effectively contro l administrative

action?


How can the public protector control administrative action?


Why is the Human Rights Commission such an importan t body of

control of administrative action?

Study [p.267] of the textbook.

What are the controlling functions of the Com-missi on for the

Promotion and Protection of the Rights of Cultural, Religious, and

Linguistic Minorities?


What are the functions of the Commission on Gender Equality?


53

What are the functions and duties of the Auditor-Ge neral, the

Electoral Commission, and the Independent Authority to Regulate

Broadcasting?


How can internal administrative control assist in c ontrolling the

actions of administrative bodies?


Activity 1


UNIT 5

State Liability

LEARNING OUTCOMES


� Understand the basis of state liability in South African law.

� Understand the contractual liability of the state.

54

� Know and understand the delictual liability of the state.

� Know and apply the elements of holding the state liable for its unlawful acts.

� Appreciate the difficulties involved in applying the control and other tests aimed at determining

when the state would be vicariously liable for the acts of its employees.

READINGS

Prescribed reading

• Burns (2006) Chapter 21

UNIT 5: State Liability

This unit is based on [Chapter 21] of the textbook and Chapter 8 of the workbook. You will need approximately six hours to complete this unit.

What is the basis of state liability in South Afric an administrative

law?


55

Can the state be held contractually liable? If so, know the

requirements.


What is the legal basis for the state’s delictual l iability?


What are the elements that must be proved in order to hold the state liable for its unlawful acts?


What is the current status of the control test? Is it still applied?


Activity 1


Examples of Previous Exam Papers

TEST Toets / Test: 1

Kursus / Course: PBR 300 and ADR 100

Tydsduur: 1 uur / Duration: 1 hour Punte / Marks: 30

Dosent / Lecturer: Prof. AWG Raath

56

VRAAG 1 / QUESTION 1 Bespreek die delgasie van administrasie bevoegdhede in die verhouding van dekonsentrasie en in die verhouding van desentralisasie. Gee ‘n voorbeeld van beide vorms van delegasie. Discuss the delegation of powers within the relationship of deconcentration and decentralisation. Give an example of both forms of delegation. (10) VRAAG 2 / QUESTION 2

Vind administratief toepassing by die handelinge deur die volgende liggame verrig: Does administrative law apply to the actions of the following bodies?

a. Vrywillige verenigings soos ‘n jokkieklub of a rugbyklub / Voluntary associations such

as jockey and rugby clubs?

b. Die Raad op Gesondheidsberoepe in Suid-Afrika / The Health Professions Council of

South Africa?

c. Die Johannesburgse Effektebeurs / The Johannesburg Stock Exchange?

Bespreek die vraag met verwysing na regspraak. Discuss the question with reference to case law. (10) VRAAG 3 / QUESTION 3

Verduidelik kortliks wat versweë bevoegdhede is. Hoe word die bestaan, omvang en trefwydte van sodanige versweë bevoegdhede vasgestel? Bespreek ook die uitleg van wette in die bepaling van hierdie bevoegdhede en gee vier voorbeelde daarvan. Briefly explain what tacit powers are. How are the existence, extent and scope of these powers established? Also discuss the role of interpretation of statutes in determining these implied powers and provide four examples of these rules. (10)

57

TEST

Toets / Test: 2 Kursus / Course: PBR 300 & ADR 100

Tydsduur: 1 uur / Duration: 1 hour Punte / Marks: 30

Dosent / Lecturer: Prof. AWG Raath

VRAAG 1 / QUESTION 1

Skryf aantekeninge oor die begrip “kwasi-judisiële handelinge”. Write notes on the concept “quasi-judicial act”. (10) VRAAG 2 / QUESTION 2

Onderskei tussen die eng en wye seining van ultra vires . Verwys in u antwoord na regspraak waar die howe die optrede van die administratiewe organ ultra vires verklaar het. Distinguish between the narrow and the wide approach to ultra vires . In your answer you should refer to judicial decisions in which the courts have declared action by an administrative organ ultra vires . (10) VRAAG 3 / QUESTION 3

Hoewel die outeur van ‘n administratiewe handeling se bevoegdhede hoofsaaklik deur die bewoording van die magtiging betaal word, speel die gemenereg tog ook ‘n rol by die bepaling van die bevoegdhede van die outeur. Verskaf twee voorbeelde van sulke administratiewe optrede se bevoeghede. Verduidelik wat hierdie gemeenregtelike voorskrifte behels en verwys na relevante regspraak in u antwoord. Although the powers of the author of administrative action are mostly determined by the wording of the authorisation, common law also plays a role. Give two examples of such common-law requirements relating to the powers of the author of administrative action. Explain what these common law directives entail and refer to relevant case law in your answer. (10)

58

Universiteit van die Vrystaat / University of the Free State

Eksamen November 2001 / Exam November 2001

PBR 300 Tydsduur: 2 ure / Duration: 2 hours Punte / Marks: 60

Eksaminator / Examiner: Prof. AWG Raath

Moderator / Moderator : Mr. S de Freitas

DOEN AL DIE VRAE EN VERWYS DEURGAANS NA REGSPRAAK .

DO ALL THE QUESTIONS AND REFER TO CASE LAW THROUGHO UT.

VRAAG 1 / QUESTION 1 Die aanspreeklikheid van die staat word deur artikel 1 van die Wet op Staatsaanspreeklikheid 20 van 1957 gereguleer. Verduidelik die voorwaardes vir die aanspreeklikstelling van die staat en bespreek veral die vraag wanneer ‘n dienaar deur sy / haar optrede die staat aanspreeklik sal stel. The liability of the state is regulated in section 1 of the State Liability Act 20 of 1957. Explain the requirements for holding the state liable and in particular discuss the question when a servant of the state would set the state liable through his / her actions. (12½) VRAAG 2 / QUESTION 2

Verduidelik in welke mate buite-geregtelike instellings die optrede / handelinge van die staatadministrasie kan kontroleer. Verwys ook na die bevoegdhede van hierdie instelling ingevolge die Grondwet. Explain to what extent extra-judicial bodies may control the conduct / actions of the state administration. Also refer to the powers of these institutions in terms of the Constitution. (12½) VRAAG 3 / QUESTION 3

Die kandidaat vir ‘n pos by ‘n tegniese kollege word nie deur die provinsiale departement van onderwys aangestel nie en die beheerliggaam (“governing council”) van die tegniese kollege doen namens die tegniese kollege aansoek om hersiening van die besluit van die departement om iemand anders aan te stel. Beskik die beheerliggaam oor die nodige locus standi om die aksie in te stel? Ten einde die nodige advies te gee, gee ook ‘n volledige beskrywing van die implikasies van die konstituionele bepalings met betrekking to locus standi . The candidate for a post at a technical college is not appointed by the provincial department of education. The governing council applies for a review of the department’s decision to appoint someone else, on behalf of the technical college. Does the governing council possess the necessary locus standi to institute the action? In order to give the required advice, also give a complete exposition of the implications of the constitutional provisions pertaining the locus standi . (10) VRAAG 4 / QUESTION 4

Ons howe het by herhaling bevind dat hulle nie die bevoeghede van administratiewe organe wil oorneem nie. Verduidelik hierdie standpunt met verwysing na die vraag onder welke omstandighede ons howe wel van die beginsel sal afwyk. Our courts have repeatedly laid down that they do not want to usurp the powers of administrative authorities. Explain this view with reference to the question under which circumstances our courts would deviate from this principle. (10)

59

VRAAG 5 / QUESTION 5

Skryf uitvoerige aantekeninge oor die toepassing van die beginsels met betrekking tot prosedures billikheid in die Suid-Afrikaanse Administratiefreg OF Gee ‘n volledige bespreking van die begrip “Administratiewe geregtigheid” vervat in artikel 33 van die Grondwet. Write elaborate notes on the application of the principles pertaining to procedural fairness in South-African Administrative Law OR Give a full exposition of the concept “Administrative justice” contained in section 33 of the Constitution. (15)

60

PUBLIC LAW – PBR324 July to November 2009

Week Unit

Readings

(See the study guide for the relevant cases

and legislation and page numbers in Burns

2003.) 1 1. General Introduction to, and Basic Principles of, A dministrative Law

1.1 General Introduction

Burns 2006

2 1.2 Definition of Administrative Law Burns 2006

3 1.3 The Sources of Administrative Law Beukes et al. (1999) Chapter 3

Burns 2006

4 2. Administrative Law Relationships and Administrative Acts

2.1 Administrative Law Relationships

Beukes et al. (1999) Chapter 4

Burns 2006

5 2.2 Administrative Acts Beukes et al. (1999) Chapter 5

Burns 2006

6 3. Just Administrative Action 3.1 General Introduction

Burns 2006

7 3.2 The Constitutional Right to Just Administrative Action Burns 2006

8 4. Control of Administrative Action

4.1 General Introduction

Burns 2006

9 4.2 Judicial Control of Administrative Action Burns 2006

10 4.3 Parliamentary Control and Control by Public Bodies Burns 2006

11 5. State Liability Beukes et al. (1999) Chapter 8

Burns 2006

12 Revision

Examination

pbr 324 english study guide- 2012 - learning -...

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