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.
