Defining Admin Action Flashcards
How does Chaskalson P define admin action?
The definition ascribed, on the other hand, to administrative law by Cora Hoexter contrasts sharply with the manner in which Chaskalson P unashamedly defines it in Pharmaceutical Mnfts of SA: In Re Ex parte President of SA as:
[…] an incident of the separation of powers under which courts regulate and control the exercise of public power by the other branches of government.
How does Nugent JA refer to the definition of admin action in PAJA?
In Grey’s Marine Hout Bay v Minister of Public Works 2005 6 SA 313 (SCA) Nugent JA referred to the definition of administrative action in PAJA as a “palisade of qualifications”.
What are the constraints of the definition given to admin action?
It has been stated that the imposition of a definition is a mere “linguistic recommendation”. Definitions, whether written or verbal, are by their very nature restricted to words employed to describe the object in question.
The description can be plain and simplistic or smacking of the proverbial horns of a dilemma when viewed as a “palisade of qualifications”.
Depending on the facts of a particular matter, a definition can work to one’s benefit; it can also turn out to be one’s archenemy.
Why is it difficult to build an understanding of admin action from the definition given in PAJA?
The dichotomy between a definition of administrative action and a concept of a legal notion such as administrative law, unconstrained by the shackles of a definition, permits the facilitation of an understanding of an area of law not in terms of rigidly confined words arbitrarily chosen and imposed in terms of a temporal definition, but rather in terms of illuminating and creative informative concepts that facilitate and inform our understanding of the subject matter at hand.
Sustenance for such view is provided for with reference to the constitutional imperatives that call upon practitioners, citizens, academics, judges and all interested persons to recognise the Constitution as the supreme law of the Republic aimed at healing the divisions of the past and establishing a society based on democratic values, social justice and fundamental human rights.
Underscoring this is the duty imposed upon our courts, tribunals, or any fora (forums) when interpreting the Bill of Rights, legislation and when developing the common law to do so in a manner that “must promote the values that underlie an open and democratic society based on human dignity, equality and freedom.” O’Regan asserted, “The foundation of administrative justice lies in the principles and values of our constitution”.
Surely, for administrative law, and the powers of review which our courts have to ‘regulate’ the other branches of government to flourish, within the boundaries of what is legitimate, the aforesaid principles and values must be given effect to by interpreting administrative action in an ‘illuminating and creative’ manner’?
Due to administrative law being a “difficult concept to capture” the essential worthiness of Hoexter’s observation in this regard is informed by the fact that the jurisprudence of administrative law can be developed more creatively and purposefully from a concept than the rigid confines of an awkwardly worded definition.
When trying to understand admin action, what must we have regard to?
To understand what administrative action is we have regard to PAJA where s 1 sets out the definition thereof. A constitutional dispensation “requires an examination of the past in order to move forward into a constitutional future.”
Why was there an increase in the ambiguity of whether the exercise of a particular function constituted an administrative act, and how has admin action evolved?
Baxter has pointed out how trias politika was the effective vehicle of the “classificatory system” by which the different functions of government could be labeled by our courts in their attempt at defining administrative acts.
Whilst such labeling permitted the courts to decide whether the exercise of a certain power or function constituted an administrative act, the inherent problem with trying to impose a definition upon a ‘legislative’, ‘judicial’, ’administrative’, ‘quasi-judicial or ‘ministerial’ exercise of power was that such definition-imposing methods were not consistently applied by our courts given the absence of a universal definition.
Consequently, there was an increase in the ambiguity of whether the exercise of a particular function constituted an administrative act.
Recalling the definition of administrative law by Chaskalson P in the Pharmaceutical case, namely that: ‘[…] it is an incident of the separation of powers…’ the absolute, but not relative exercise of which is described by Ngcobo J’s observation that: ‘The duty of the courts in this regard, however, does not extend to telling the functionaries how to implement transformation. that must be left to the functionaries themselves’.
How is effect given to administrative action in terms of the Constitution?
Section 33(1) and (2) of the Constitution enshrines the right to just administrative action by providing everyone has the right to administrative action that is lawful, reasonable and procedurally fair inclusive of the right to be given written reasons for rights adversely affected by administrative action.
However, the non self-executing provisions of s 33 resulted in the coming into effect of PAJA in terms of s 33(3).
Before the implementation of PAJA, how was general admin action characterised?
In SARFU, decided prior to the coming into operation of PAJA on 30 November 2000, the Court stated that:
Determining whether an action should be characterised as the implementation of legislation or the formulation of policy may be difficult. It will […] depend primarily upon the nature of the power.
Earlier in the judgment, it was stated that:
What matters is not so much the functionary as the function. The question is whether the task itself is administrative or not. It may well be […] that some acts of a legislature may constitute ’administrative action’.
Similarly, judicial officers may, from time to time, carry out administrative tasks. The focus of the enquiry as to whether conduct is ‘administrative action’ is not on the arm of government to which the relevant actor belongs, but on the nature of the power he or she is exercising.
How was admin action characterised in Fedsure case?
That the nature of the power being exercised should be more determinative of whether an act is administrative action, rather than focusing upon the functionary itself is supported by the Fedsure case in which the Constitutional Court found that the power that had been exercised was legislative in nature in terms of the provisions of s 24 of the interim Constitution and therefore did not constitute administrative action.
What is regarded as executive action?
The basis upon which the court in SARFU found that the President, as head of the Executive, had exercised his discretion was such that it did not constitute administrative action. The power to appoint a commission of inquiry was a constitutional power in terms of s 84(2) that was akin to a prerogative
What is regarded as legislative action?
In the Pharmaceutical case, which had to do with legislation (the Act) that could not be implemented without the necessary schedules thereto being in place, the Constitutional Court adopted a so-called hybrid approach finding that the actions of the President in assenting to Proclamation R49 fell “between a law-making and administrative process” but was something that was “closer to the legislative process.”
The preliminary remarks made by Chaskalson P at the outset that “[t]his is one of those difficult cases” underscores the reality of the difficulty with which our courts confronted and challenged when called upon to answer complex and challenging questions relating to administrative law.
What is regarded as judicial action?
Whereas our courts have found that judicial action arising or flowing pursuant to legislation requiring the pre-trial examination of persons who may give relevant evidence to be judicial and not constituting administrative action (See Nel v Le Roux NO 1996 3 SA 562 (CC), the Constitutional Court has found that decisions by commissioners of the Commission for Conciliation, Mediation and Arbitration (CCMA) do in fact constitute administrative action as was found in the matter of Sidumo v Rustenburg Platinum Mines 2007 12 BLLR 1097 (CC).
Can private bodies exercise public power?
The AAA Investments case is clear authority for the fact that even the exercise of power by a private authority can constitute administrative action given that the exercise of such power is public in nature as opposed to private.
Moreover, the definition of “organ of state” in s 239 refers to ‘any other functionary or institution’. As was stated in SARFU, analysis of the nature of the function as opposed to the functionary is more important. As early as the 1980s, our courts were prepared to find that power exercised by private institutions was of such a nature that it impacted upon the general interests of the public, such interests were sufficiently paramount to override considerations that the institution was a ‘private’ or ‘statutory’ institution, given that the nature of power being exercised impacted so broadly on the public (See Dawnlaan Beleggings v Johannesburg Stock Exchange 1983 3 SA 344 (W)).
What importance does the definition of admin action in PAJA play?
In s1 of PAJA the legislature has taken the trouble (perhaps too much!) in setting out the complex definition of administrative action. Some may welcome such a definition since administrative law has now at its disposal a definition or label that sets out, or purports to do so, a meaning of administrative action thereby offering a degree of certainty that may serve as a useful tool in the service of administrative law.
What does s3 of PAJA provide?
Section 3(1) of PAJA provides that administrative action that materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair. - The factors giving effect to the right to procedurally fair administrative action are listed under s 3(2)(b)(i)-(iv).
Section 5 of PAJA relates to reasons for administrative action whilst the judicial review of administrative action is set out in terms of the provisions of s 6.
