Ch. 5 - Lawfulness

Question 1

Admin action is defined by reference to …

Answer 1

the existence of an empowering provision

Question 2

Which case is important when considering lawfulness?

Answer 2

Fedsure case
- It is a fundamental principle of the rule of law, recognised widely, that the exercise of public power is only legitimate where lawful. It is a fundamental principle in constitutional law.

Question 3

What stands at the core of the general constitutional-law principle of legality?

Answer 3

Lawfulness

- PAJA does not include a definition

Question 4

What is the most basic meaning of lawfulness?

Answer 4

That the administrative action and the authorisation for that action must be aligned.

Question 5

An analysis of lawfulness in admin law compares what?

Answer 5

ALWAYS involves comparing the admin action to the authorisation for that action in the relevant empowering provision

• Any areas of non-overlap point to potential lawfulness problems
• From a facilitative perspective, lawfulness provides administrators with the tools to identify specifically what they are entitled to do

Question 6

What is the first requirement of lawfulness?

Answer 6

Authorisation

Question 7

Discuss ‘authorisation’

Answer 7

1. For every action that an administrator takes, there must be a valid authorisation in an empowering provision. Or it will be unlawful (Fedsure)
2. The constitutional requirement of lawfulness includes the common-law principles of ultra vires
3. The complete absence of an empowering provision may be a good indication that the action is not administrative at all, but rather of a policy nature and hence excluded from administrative law. (Ed-U-College case) - the question of lawfulness would then not even arise.
4. The issue is typically not that there is NO authorisation, but rather than some aspect of the authorisation does not align with the action.
5. A useful way to answer this is to ask -
   a. WHAT was authorised
   b. WHO was authorised
   c. HOW did the authorisation prescribe the action to be taken

Question 8

Discuss the ‘What’ part of authorisation

Answer 8

1. Sec 6(2)(f)(i) of PAJA
2. Harris case
3. Reason, purpose, motive for which action is taken.
4. No administrative power is given without a reason or purpose, dosing so would breach the principle of rationality - which is required for all public action (Pharma. Manufacturers Association of SA case)
5. Ito purpose, PAJA lists the following grounds for review:
   - If it was taken for an unauthorised reason
   - Ulterior purpose or motive
   - In bad faith
6. An omission can, but will not always, constitute admin action.
7. It will only be an admin action if it amounts to a FAILURE to act (ie. when there is a duty to act).
8. An administrator can vary a decision already taken if the administrator is authorised to do so. It is thus merely an application of the WHAT? question.
9. In the Kirland Investments case the CC confirmed the basic position that an administrator is bound to an administrative action once taken and cannot vary or ignore such action without approaching a court for an order to set the action aside.

Question 9

Discuss the ‘Who’ part of authorisation

Answer 9

1. In most cases the empowering provision will indicate specifically which administrator is given a particular power. This can be by identifying the particular office or identifying the qualifications or characteristics of the authorised administrator.
2. Sec 6(2)(a)(i) of PAJA states that only the authorised administrator may act.
3. Where an entity is authorised rather than an individual, a pertinent question will be whether that entity was correctly constituted when it acted.
4. To establish whether delegation is possible, one must ask the standard question: is it authorised?
5. Notwithstanding the common law presumption against delegation, the C and PAJA do not work with any presumptions iro delegation.
6. When deciding whether a particular decision taken ito delegated power is lawful, one must ask the WHO lawfulness question twice: who the authorised administrator is and who is identified in the empowering provision as the admin that makes take the decision.
7. Generally, the court will more readily accept tacit authority to delegate only a part of the power, while the original holder of the power retains some control.
8. The basis of the WHO questions is that the authorised administrator must take the relevant decision himself. Both in form and substance.
9. He must not just formally take it, but also apply his mind and come to the relevant decision.
10. Where an admin takes a decision under the influence of another there is thus a lawfulness problem.
11. Similarly, when an admin blindly follows a policy document it is still fettered and not making the decision himself.
12. The key question in every instance is whether the administrator himself took the relevant decision after forming his own view on the relevant considerations.

Question 10

Discuss the ‘How’ part of authorisation

Answer 10

1. The issue here is whether the admin followed the process set out in the empowering provision for taking the relevant decision.
2. The focus is on HOW the decision must be taken ito the empowering provision.
3. It relatest to purely procedural prescripts and substantive preconditions that must be met in order for the admin to exercise the power lawfully,
4. Kirland Investments case also applicable here.
5. Many empowering provisions prescribe the steps that an administrator must follow when taking a decision.
6. Compliance with procedures in empowering provisions should not, however, be judged formalistically. The courts have held that deviation will not necessarily result in the admin action being unlawful.
7. The question that must be asked in every case is whether the admin complied sufficiently with the prescribed procedure to achieve the purpose of the particular provision.
8. Allpay case: The proper approach is to establish, factually, whether an irregularity occurred.
9. The empowering provisions may also prescribe conditions for the exercise of a particular power. These can be either subjective or objective conditions.
10. Subjective conditions is less problematic than under the common law, since the C requires that admin action must be reasonable.

Question 11

What is the final aspect of lawfulness to consider?

Answer 11

That of mistake.

• An admin’s actions may be unlawful if he or she makes a mistake in either law or fact pertaining to his or her authorisation.
• This does NOT relate to a mistake in relation to the content o the administrator’s decision. Iow, we are not saying that the admin took the wrong admin action. The focus is still on the authorisation of the action (under lawfulness).
• The mistake must thus be purely in relation to the authorisation

Question 12

Discuss ‘error of law’

Answer 12

1. PAJA (ss 6(2)(d)) states that an administrative action will be unlawful if it was materially influenced by an error of law.
   - The admin must take the admin action upon a correct interpretation of the applicable law, particularly the empowering provision. Otherwise it may be unlawful.
2. The leading case is that of Hira v Booysen: an rror of law will be reviewable, and lead to unlawfulness of the admin action, it if was material.
   - Materiality is determined by asking if the same decision would be reached if the admin had adopted the correct interpretation of the applicable law. If the answer is yes, it is not material.

Question 13

Discuss ‘mistake of fact’

Answer 13

1. Pepcor Retirement Fund case, the SCA stated that a material mistake of fact should be a basis on which a court can review an admin decision. This was prior to PAJA.
2. PAJA no recognises mistake of fact as an element of lawfulness, which requires an admin to take all relevant considerations into account and ignore all irrelevant considerations when taking admin action.
3. In Digital Voice Processing case the court held that an error of fact will only be material if the error was the direct cause of the decision at issue.