Lawfulness as a Standard of Just Administrative Action (The ‘Who’ Question) Flashcards
What sections of PAJA apply when looking at the who question?
S 6(2)(a)(i) vs S 6(2)(f)(i)
Explain the difference in applying s6(2)(a)(i) vs s6(2)(f)(i) of PAJA
Section 6(2): A court or tribunal has the power to judicially review an administrative action if:
Ø (a)(i): The Administrator who took it, was not authorised to do so by the empowering provision.
“who”
Ø (f)(i): The action itself, contravenes a law or is not authorised by the empowering provision
§ Focuses on the “what” question: PAJA’s most general lawfulness requirement
Give practical examples of how to distinguish between s6(2)(a)(i) and s6(2)(f)(i)
Ø The action itself:
§ If the Minister of Health is authorised to take action X, but
then takes action Y, then the applicable ground of
unlawfulness will be Section 6(2)(f)(i).
* It implicates the “what” question because it is directly about what he was allowed to do and what he actually did.
Ø The administrator who took it:
§ The Minister of Health has the authority to take action X, but
instead the Director-General of the Department of health takes the action. Therefore, it is section 6(2)(a)(i), because the
correct action was taken but by the wrong person.
* It implicates the “who” question.
What are th different ways in which authorised administrators are identified?
Just Names or Identifies
A Particular Position or Office
Qualifications or Characteristics
Entities / Bodies
Elaborate on the identification through just names or identities
The empowering provision may name/identify the specific or
particular administrator that is authorised to act.
§ The Minister of Health
§ The Director-General of the Department of Home Affairs
§ The Registrar of ships
Elaborate on A Particular Position or Office
The empowering provision may grant authority/public power to
a particular position/office holder as opposed to a particular or
specific individual.
§ A building control officer
§ An inspector
Elaborate on identification through Qualifications or Characteristics
Ø The empowering provision may identify the authorised
administrator by way of qualifications (education, skills, etc) or
characteristics with specifying their identity or position.
§ A medical practioner
§ An attorney
Elaborate on entities or bodies as a form of identification
The empowering provision may authorise entities or bodies to
act.
Ø They may range from specific to the less specific to the general.
§ Specific à The National Health Research Ethics Committee
§ Less Specific à An appeal committee.
§ General à The Department of Health
v REMEMBER: Regardless of identity, administrators may only validly act if they are:
Ø Properly appointed
Ø Properly qualified
Ø Properly constituted
Case law on the condition that the appointed body must be properly constituted
Judicial Services Commission & Another
v Where an empowering provision authorises an entity,especially a council or committee, the entity must be correctly/properly constituted when it acts.
Ø Therefore, only properly/correctly constituted entities are considered an authorised administrator.
when will an entity not be properly constituted?
Ø One or more of its required constituents/members is not
included when the action is taken; and/or
Ø There is non-compliance with the requirements relating to how the entity must be constituted.
What’s the general rule on authorised bodies or entities
Ø If the entity is not correctly/properly constituted:
§ It will not amount to the authorised entity;
§ Any action taken by the entity will be unlawful
§ On the basis that the administrator who took it was not authorised to do so by the empowering provision
* S 6(2)(a)(i)
What are the important things to take note of when considering entities/bodies
Ø All members of the entity are authorised by the empowering
provision to jointly take the administrative action as one
body/entity.
Ø Whether all members of the entity have to always be present
during the process or deliberations leading to administrative
action depends on the interpretation of the empowering
provisions prescribing how the entity should function
What are Quorum rules?
Refers to the minimum number of members of an entity that must be present for the entity to take actions.
What do Quorum rules ensure?
§ That entities comprised of many members are not
hamstrung (restricted/ineffective/powerless) in their
functioning by strict adherence to the approach that all
members must always be present for all actions of the
entity.
What happens if the empowering provision includes Quorum rules?
§ Then the entity will be properly constituted if the quorum
is present when the decision is taken.