Ch. 2 - Admin authorities in legal context

Question 1

What must be referenced when answering “what is the administration”?

Answer 1

Normative values found in the C:

• Democracy
• Institutional principles, such as the separation of powers

Question 2

Discuss ‘state’

Answer 2

• A broad term with a number of meanings
• Can refer to a community, living in a specified geographical area, with its own political organisation, or a nation.
• It can also signify the type of constitution operating in a country (eg. s1 of our C)

Question 3

Discuss ‘executive’

Answer 3

• Refers to that branch within the separation of powers primarily concerned with the FORMULATION of POLICY a and the IMPLEMENTATION of LEGISLATION and POLICY.

Question 4

How is ‘executive’ defined in the C?

Answer 4

Section 85 of the C states

• The executive authority of the Republic vests in the President
• The President exercises the executive authority, together with the other members of Cabinet …

Question 5

What 2 functions does the executive perform?

Answer 5

1. Formulation of policy

2. Implementing policy and legislation

Question 6

How is policy distinguished (refer to caselaw)

Answer 6

Policy in the wide sense and policy in the narrow sense

- Ed-U-College

Question 7

Name the 3 categories of the executive

Answer 7

National, provincial, and local spheres

Question 8

The public administration forms part of which branch of government?

Answer 8

The executive.

Question 9

What is the importance of section 2 of the C?

Answer 9

It is the supremacy clause, that not only entrenches certain values, but obliges the state to take positive steps.

Question 10

What is section 33 of the C?

Answer 10

The right (as part of the BoR) to ‘just administrative action’

Question 11

What is section 195 of the C?

Answer 11

• It recognises the constitutional role of the public administration
• It lists a range of values and principles to which the administration must adhere and emphasises that a very high standard of conduct is expected of the administration.

Question 12

Which part of the Constitution refers to the separation of powers?

Answer 12

It is not expressly stated.

• However, Constitutional Principle VI required the inclusion of the separation of powers in the final C
• The court confirmed it in In Re Certification case

Question 13

Which Constitutional provisions apply to each branch of the government?

Answer 13

• Legislature: section 43
• Executive: section 85
• Judiciary: section 165

Question 14

I terms of the Constitutional Principle VI, what is the purpose of the separation of powers?

Answer 14

To ensure accountability, responsiveness, and openness.

Question 15

Is the separation of powers rigid (refer to case law)

Answer 15

No, it is a flexible doctrine

- In Re Certification case

Question 16

What is the administration?

Answer 16

Unclear. It is not defined in the C nor in general legislation, nor is it a technical legal term.

Question 17

What are the two main characteristics of the administration?

Answer 17

The administration has both INSTITUTIONAL and FUNCTIONAL characteristics.

Question 18

What must be realised about the administration when studying admin law?

Answer 18

That the administration consists of a conglomeration of widely divergent institutions and actors.

Question 19

Discuss the distinction between administrative law and the administration in an institutional sense.

Answer 19

• Broadly, administrative law REGULATES the PERFORMANCE of public functions
• Therefore, the administrative law does not apply whenever the administration acts, though it often does
• Administrative law also often applies when the administration is not involved, but the function performed by a private entity has a public nature

Question 20

Ito the institutional approach an organ of state …

Answer 20

may also refer to ‘any department of state or administration in the national, provincial, or local sphere of government.
- Therefore, for purposes of PAJA ‘administrator’ may refer to a private person

Question 21

Who is the POLITICAL HEAD of a department?

Answer 21

The Minister

Question 22

Who is the ADMINISTRATIVE HEAD of a department?

Answer 22

The Director-General

Question 23

How does the political and administrative facets work?

Answer 23

Usually, the Ministry will formulate policies and propose legislation and the department will implement these policies and statutes.

Question 24

What is Chapter 9 of the C?

Answer 24

It creates 6 state institutions that support constitutional democracy in SA.

Question 25

What is the subject of admin law?

Answer 25

The exercise of public power.

Question 26

What are the two broad categories of admin law?

Answer 26

1. General administrative law - refers to those rules of administrative law that are applicable to all incidences of admin action.
2. Particular administrative law - deals with a particular type of admin action

Question 27

What is the dual nature of admin law?

Answer 27

On the one hand, administrative law aims to restrict public power; on the other hand, administrative law aims to enable and facilitate the exercise of public power.

Question 28

Discuss the red light theory

Answer 28

• Regards administrative law primarily as a form of control of public power, enforced by the courts through judicial review.
• Regards the exercise of public power as a potential threat to liberty

Question 29

Discuss the green light theory

Answer 29

• Recognises the need for control, but prefers democratic or political forms of accountability.
• Sees in admin law a vehicle for political progress and welcomes the ‘administrative state’

Question 30

What is the difference between the red light and green light theories?

Answer 30

• Red light believes that law was autonomous to and superior over politics; that the administrative state was dangerous and should be kept in check by law; that the preferred way of doing this was through adjudication; and that the goal should be to enhance liberty.
• Green light believes that law was not autonomous from politics; that the administrative state was not a necessary evil, but a positive attribute to be welcomed; that administrative law should not seek to merely stop bad administrative practice, and that there might be better ways to achieve this than adjudication; the goal was to enhance individual and collective liberty conceived positive and not just negative terms.

Question 31

What is administrative power?

Answer 31

The legal authorisation for a particular function

Question 32

What are the 2 principles iro admin law and its relation with admin authorities?

Answer 32

1. Admin law does not apply only to administrative authorities; and
2. Administrative authorities are not subject only to administrative law.

Question 33

What are the main sources of SA admin law?

Answer 33

1. The Constitution
2. Legislation
3. Common law
4. Case law