Ch. 2 - Admin authorities in legal context Flashcards
What must be referenced when answering “what is the administration”?
Normative values found in the C:
- Democracy
- Institutional principles, such as the separation of powers
Discuss ‘state’
- 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)
Discuss ‘executive’
- Refers to that branch within the separation of powers primarily concerned with the FORMULATION of POLICY a and the IMPLEMENTATION of LEGISLATION and POLICY.
How is ‘executive’ defined in the C?
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 …
What 2 functions does the executive perform?
- Formulation of policy
2. Implementing policy and legislation
How is policy distinguished (refer to caselaw)
Policy in the wide sense and policy in the narrow sense
- Ed-U-College
Name the 3 categories of the executive
National, provincial, and local spheres
The public administration forms part of which branch of government?
The executive.
What is the importance of section 2 of the C?
It is the supremacy clause, that not only entrenches certain values, but obliges the state to take positive steps.
What is section 33 of the C?
The right (as part of the BoR) to ‘just administrative action’
What is section 195 of the C?
- 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.
Which part of the Constitution refers to the separation of powers?
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
Which Constitutional provisions apply to each branch of the government?
- Legislature: section 43
- Executive: section 85
- Judiciary: section 165
I terms of the Constitutional Principle VI, what is the purpose of the separation of powers?
To ensure accountability, responsiveness, and openness.
Is the separation of powers rigid (refer to case law)
No, it is a flexible doctrine
- In Re Certification case
What is the administration?
Unclear. It is not defined in the C nor in general legislation, nor is it a technical legal term.
What are the two main characteristics of the administration?
The administration has both INSTITUTIONAL and FUNCTIONAL characteristics.
What must be realised about the administration when studying admin law?
That the administration consists of a conglomeration of widely divergent institutions and actors.
Discuss the distinction between administrative law and the administration in an institutional sense.
- 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
Ito the institutional approach an organ of state …
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
Who is the POLITICAL HEAD of a department?
The Minister
Who is the ADMINISTRATIVE HEAD of a department?
The Director-General
How does the political and administrative facets work?
Usually, the Ministry will formulate policies and propose legislation and the department will implement these policies and statutes.
What is Chapter 9 of the C?
It creates 6 state institutions that support constitutional democracy in SA.
What is the subject of admin law?
The exercise of public power.
What are the two broad categories of admin law?
- General administrative law - refers to those rules of administrative law that are applicable to all incidences of admin action.
- Particular administrative law - deals with a particular type of admin action
What is the dual nature of admin law?
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.
Discuss the red light theory
- 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
Discuss the green light theory
- 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’
What is the difference between the red light and green light theories?
- 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.
What is administrative power?
The legal authorisation for a particular function
What are the 2 principles iro admin law and its relation with admin authorities?
- Admin law does not apply only to administrative authorities; and
- Administrative authorities are not subject only to administrative law.
What are the main sources of SA admin law?
- The Constitution
- Legislation
- Common law
- Case law
