Just Administrative Action Flashcards
When is administrative action performed validly?
Administrative action is valid when the decision of the administrator or organ of state is authorized in law and all the requirements set by the law are met.
What is just administrative action or administrative justice?
It is an overarching requirement that relates to ALL the requirements for valid administrative action. As an overarching requirement, just administrative action determines the legal boundaries of any administrative action and ensures that administrative action is performed in accordance with all the relevant rules prescribed by law.
What does ultra vires and intra vires mean?
ultra vires = to act beyond one’s powers (makes the administrative action invalid)
intra vires = within the power
What do we mean when we say that the public functionary has not “applied their mind” to the task or function at hand?
When the public functionary has not complied with all the requirements for validity.
What is the basis of legality in public administration?
The basis is that the public administration must:
a) serve and promote the public interest
b) protect and respect fundamental or human rights
Legality is the basis of all administrative action since any administrative action should be in accordance with all the requirements of the law.
What is an “enabling or empowering act or statute”?
Legislation that confers administrative authority. In the enabling statute we find commands or directives relating to the scope and content or nature of administrative power. We may also find instructions in the statute requiring the administrator to possess specific knowledge, experience or other qualifications. It may also prescribe specific procedures to be followed.
What is one of the basic rules of delegation?
Delegation is unlawful, unless certain requirements have been met.
Name the three forms of delegation.
a) The mandate or instruction/command
b) Deconcentration
c) Decentralisation
In the empowering legislation we find provisions that demarcate or delimit the administrators powers, in what areas?
i) the geographical area within which or where he or she must exercise their
powers
ii) the time within which these powers must be exercised
iii) the object that is the subject matter of the action
Why is there a rule against retrospective action?
Any retrospective administrative action will affect existing rights, privileges and freedoms.
Name the forms of abuse of power by the administrator.
a) exercising power with an unauthorized or ulterior purpose
b) exercising power using an unauthorized procedure
c) exercising power using ulterior motives to defeat the purpose of law (in fraudem legis)
What does it mean when someone acts in mala fide?
They are acting or using their power in bad faith. They have not applied their mind to the requirements for validity of administrative action. This refers to fraud, dishonesty, corrupt action and the wrongful use of power in a wider sense.
Explain what a justifiable decision is.
A justifiable decision is one based on reason, and although there is always a certain subjective element involved in every decision because the administrator has personal expertise and qualifications, the decision must nevertheless be such that an objective bystander can “go along with it” or accept it, even if the bystander themself may have come to a different decision.
What are the three requirements administrative action must meet in order to qualify as justifiable in relation to the reasons given?
Suitability, necessity and proportionality.
What is “symptomatic unreasonableness”?
Any unreasonable administrative action is merely an indication (symptom) that some other requirements for valid administrative action have not been met.
