Administrative Action Flashcards
Define administrative action.
must be able to recite the first part exactly and only has to name a few exclusions
‘administrative action’ means any decision taken, or any failure to take a decision, by-
a) an organ of state when -
(i) exercising a power 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; or
b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision,
which adversely affects the rights of any person and which has a direct, external legal effect, but does not include
aa) the executive power or functions of the National Executive
bb) the executive powers or functions of the Provincial Executive
cc) the executive powers or functions of a municipal council
dd) the legislative functions of Parliament, a provincial legislator or a municipal council
ee) the judicial functions of a judicial officer of a court referred to in Section 166 of the Constitution
ff) a decision to institute or continue a prosecution
gg) a decision relating to any aspect regarding the nomination, selection or appointment of a judicial officer or any other person, by the Judicial Service Commission in terms of any law
hh) any decision taken, or failure to take a decision in terms of any provision of the promotion of Access to Information Act
ii) any decsion taken, or failure to take a decision in terms of section 4(1) of PAJA
What are the building blocks of administrative action?
keeping in mind the definition thereof
1) decision, including a proposed decision, as well as the failure to take a decision
2) of an administrative nature
3) under an empowering provision
4) organ of state or natural or juristic person when exercising public power or performing a public function
5) that adversely affects the rights of any person
6) that has a direct, external legal effect
7) that is not specifically excluded by the list of 9 broad categories
Name examples of conduct that will qualify as a decision.
a) making, suspending, revoking or refusing to make an order, award or determination
b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission
c) issuing, suspending, revoking or refusing to issue a license, authority or other instrument
d) imposing a condition or restriction
e) making a declaration, demand or requirement
f) retaining, or refusing to deliver up, an article
g) doing or refusing to do any other act or thing of an administrative nature; and a reference to a failure to take a decision must be construed accordingly
What do we mean when we say that a decision must be of an administrative nature?
That the decision needs to relate to the day-to-day business of implementing and administering policy. In short, it includes every possible aspect of government activity, such as “ granting a license, promoting an employee, stamping apassport etc”.
What is empowering provision?
Empowering provision is defined as a law, a rule of common law, customary law, or an agreement, instrument or other document.
What are the three classes of administrative action?
a) legislative administrative acts
b) judicial administrative acts
c) administrative acts
What are the characteristics of legislative administrative acts?
a) Legislative administrative acts are the most easily recognized action of the administration. They have a specific form and are published in an official document, such as the Government Gazette.
b) General relationships are created, varied and/or ended by administrative legislative acts. The administrative institution cannot therefor regulate this general relationship by way of a decision.
c) Specific rules apply to the adoption, repeal or amendment of all legislative administrative acts.
d) The power to delegate a legislative power exists only when there is express statutory authority for this.
e) Any administrative legislative act must be within the framework of the authority given by the original Act. This means that the regulations may not conflict with any statute or restrict the provisions of a statute. Also, they may not be vague and unclear. The reason for this requirement is that the public must know what is expected of them or what they may or may not do.
Explain judicial administrative acts.
It is an action that is quasi-judicial (almost like that of a court). Like the courts, administrators interpret and apply legal rules to disputes in concrete situations. Administrative adjudication is usually undertaken by administrative tribunals. The rulings of these tribunals are subject to judicial control.
When does administrative action take effect?
Legislative administrative acts: as soon as the regulation or proclamation has been promulgated and the date of commencement arrives
Judicial administrative acts: as soon as the judicial institution gives its ruling or delivers its judgement
Administrative acts: upon the decision becoming known
How is the legal force of administrative action ended?
By repeal, revocation, amendment, lapse of time, withdrawal of one of the subjects to the relationship, or by court order.
When the administrator cannot amend, repeal, revoke or vary it decision, what do we call it?
functus officio
Meaning the matter has been dealt with and the organ of state can no longer change their mind.
When can legislative administrative acts be repealed, revoked or amended?
At any time. The repeal may not have retrospective effect (apply to the past). When an individual has acquired rights as a result of the legislative act, the repeal, revocation or amendment does not affect these rights.
When are judicial administrative acts functus officio?
Once it has made its ruling, and it cannot vary or revoke the decision.
Explain the process of the termination of invalid administrative action.
The administrator may alter or withdraw any invalid administrative acts. An invalid administrative act must be se aside by way of judicial review. An organ of state must challenge an invalid administrated act without any unwarranted delay.
What are the types of valid administrative action?
Onerous or Burdensome
Beneficial
Status- affecting
