Ch. 1 - Development of Admin Law in SA

Question 1

With what is admin law concerned?

Answer 1

With the exercise of public power

or the performance of a public function.

Question 2

What is unique about admin law rules?

Answer 2

There is no absolute clarity or certainty on many of the rules
- Most times there isn’t an absolutely correct nor wrong answer to a question, but an attempt to find that point on a spectrum of factors which most comfortably fits the circumstances and demands of the applicable legal framework

Question 3

What is admin law ultimately about?

Answer 3

About a quest for balancing rights,
interests and obligations,
in the determination of which public and legal policy plays a central role.

Question 4

Define ‘administrative law’

Answer 4

Administrative law is that part of constitutional law
which both empowers those exercising authority
or performing functions through the law,
and which holds accountable to rules of law
all those who exercise public power
or perform public functions

Question 5

Why is administrative law part of constitutional law?

Answer 5

Because it seeks to regulate the power of the executive branch of government through the law.

Question 6

What are the 2 sides of public power?

Answer 6

1. Authorisation (aka Empowerment)

2. Regulation (aka Accountability)

Question 7

What is admin ‘law’ in comparison to admin ‘justice’?

Answer 7

Admin law can be seen as the narrower foundation of the rapidly developing notion of administrative justice.
- Admin law tends to concentrate more narrowly on judicial review through the court; admin justice widens the view to encompass alternative methods of scrutinising the fairness and justice of administrative conduct.

Question 8

Admin law is concerned with …

Answer 8

PUBLIC authority and functions

- Although, over the years what is regarded as public and private have become blurred

Question 9

Since the lines between public and private have become blurred, how does the definition cover this?

Answer 9

By referring to the NATURE of the powers exercised, rather than the TYPE of body which exercising it.

Question 10

What is the largest influence of admin law (historically)?

Answer 10

English law. There is no trace of Roman-Dutch origins.

- Admin law used to be overwhelmingly ‘judge-made’.

Question 11

What were Dicey’s 3 principles?

Answer 11

1. Everyone was subject to and equal before the law
2. Appearing before the ordinary courts of the land (no special courts for specific people),
3. That the rule of law represented the hard-won victories of the ordinary people through court proceedings.

Question 12

Which 2 factors affected the ‘judge-made’ aspects?

Answer 12

1. Judicial Policy: The unwritten but widely accepted commo understanding of social-economic-political relationships of the parties before the court.
2. Doctrine of separation of powers: Requires 1) a degree of separation of both personnel and functions between the 3 branches of government and 2) a system of mutual checking and balances of the exercise of governmental power by each such branch.

Question 13

Discuss the concept of ‘deference’

Answer 13

• Plays a key role iro the separation of powers
• A healthy democracy requires each branch of government to respect the legitimate spheres of operation of the 2 other branches
• ‘Mutual respect, each of the other’

Question 14

‘The theory of admin law reflects …’

Answer 14

the theory of the state within which it operates

Question 15

The exercise of discretion played a large admin role in which 2 key aspects of the apartheid era?

Answer 15

1. The admin process of race classification

2. The increasingly broad discretion granted to police officers to act against those opposing apartheid

Question 16

Ito the common law, what did the courts use before 1994 to determine the distinction between executive and admin authority?

Answer 16

The doctrine of classification of functions.

Question 17

What are the 5 categories of admin action iro the doctrine of classification of functions?

Answer 17

1. Of a lawmaking nature
2. Of a judicial nature
3. Of a quasi-judicial nature
4. Of a purely administrative nature
5. Of a ‘Ministerial’ nature

Question 18

Much of the jurisprudence of the CC in developing admin law after 1994 has been …

Answer 18

devoted to a case-by-case exploration of the appropriate limits of its autority to review admin conduct.

Question 19

What is a consequence of the constitutional separation of powers?

Answer 19

The principle that the judiciary ‘reviews’ the procedural regularity of the exercise of public powers, and does not hear ‘appeal’ on the merits of such actions.

Question 20

In terms of hearing disputes on admin law, what must the courts do?

Answer 20

Judges must ensure that, in reaching its decisions or exercising the discretion granted to it, the executive and its public admin remain within the limits of the authority granted to them and comply with the processes described by the law for its exercise.

Question 21

What does review for reasonableness encompass?

Answer 21

Both the FORM and the SUBSTANCE of the exercise of public power.

Question 22

What is the crucial question a judge must ask?

Answer 22

“How far does my enquiry go?”

• An investigation into the merits can stay comfortably within the notion of ‘review’ provided that the reviewing judge determines only that the action taken falls within the limits of a range of action which is reasonable.

Question 23

How many stages of reform were there in the period 1990 to 2000?

Answer 23

4 stages

Question 24

What is the important event linked to the 1st stage of reform?

Answer 24

The 3-day workshop held at the Breakwater campus of UCT in Feb 1993.

Question 25

Which is the most important definition found in section 1 of PAJA?

Answer 25

Section 1(i) the definition for ‘admin action’.

Question 26

When will a Magistrate’s court have jurisdiction to hear an application for review of admin action?

Answer 26

When designated by the Minister to do so, and provided that the presiding magistrate has undergone appropriate training and also been so designated.

Question 27

Name at least 5 avenues through which the review of admin conduct can be sought

Answer 27

1. Whether the admin conduct falls within the definition of ‘admin action’
2. If the conduct does not, but rather within the broad compass of ‘executive action’, it is reviewable on against the demands of the ‘principle of legality’ which is enshrined as an aspect of the ‘rule of law’
3. Due to existence of structures and processes established by legislation which applies to a particular sphere of the public admin, the courts will insist on the ‘special statutory’ review mechanism, rather than PAJA.
4. Section 33 of the C (rarely resorted to)
5. Common law (but no longer exists as an avenue, but where private body involved could be possible)

Question 28

What are the main characteristics of the law? (8)

Answer 28

1. Foundation of the exercise of jurisdiction to review admin action is found in the C (especially ss 1(c), 33 and 195). As such, there is now little reference to the ultra vires doctrine as the basis of review.
2. Review according to PAJA is the most frequent type of regulation of the exercise of public power, because most acts done by the public admin fall within the definition
3. Putting goods or services out to tender by gov. qualified as admin action
4. The applicability of PAJA where a specialised statutory regime exists has been a source of contention, with it appearing that the special statutory regime will apply, unless the outcome of the decision will have a substantial public impact
5. There is a focus on the importance of admin fairness to the provision of socio-economic rights
6. Significant development has bee n the creation of a parallel avenue for review of executive action, which does not qualify as admin action ito PAJA
7. Direct ouster clauses are effectively eliminated because of the right of access to court ito s34 of C.