Lawfulness as a Standard of Just Administrative Action (The ‘Who’ Question)

Question 1

What sections of PAJA apply when looking at the who question?

Answer 1

S 6(2)(a)(i) vs S 6(2)(f)(i)

Question 2

Explain the difference in applying s6(2)(a)(i) vs s6(2)(f)(i) of PAJA

Answer 2

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

Question 3

Give practical examples of how to distinguish between s6(2)(a)(i) and s6(2)(f)(i)

Answer 3

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.

Question 4

What are th different ways in which authorised administrators are identified?

Answer 4

Just Names or Identifies
A Particular Position or Office
Qualifications or Characteristics
Entities / Bodies

Question 5

Elaborate on the identification through just names or identities

Answer 5

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

Question 6

Elaborate on A Particular Position or Office

Answer 6

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

Question 7

Elaborate on identification through Qualifications or Characteristics

Answer 7

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

Question 8

Elaborate on entities or bodies as a form of identification

Answer 8

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

Question 9

Case law on the condition that the appointed body must be properly constituted

Answer 9

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.

Question 10

when will an entity not be properly constituted?

Answer 10

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.

Question 11

What’s the general rule on authorised bodies or entities

Answer 11

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)

Question 12

What are the important things to take note of when considering entities/bodies

Answer 12

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

Question 13

What are Quorum rules?

Answer 13

Refers to the minimum number of members of an entity that must be present for the entity to take actions.

Question 14

What do Quorum rules ensure?

Answer 14

§ 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.

Question 15

What happens if the empowering provision includes Quorum rules?

Answer 15

§ Then the entity will be properly constituted if the quorum
is present when the decision is taken.

Question 16

What happens if the quorum does not properly prescribe how the quorum should function?

Answer 16

§ The entity will be able to formulate its own procedure
§ For how it should function
§ Including quorum rules stating how many members must be
present for the entity to take valid decisions.
§ See example on slide 22 for National Health Research
Ethics Council

Question 17

what are the consequences the failure to appoint entites/bodies in a manner that is specified?

Answer 17

Ø Where the members of the entity have not been appointed in the
manner specified by the empowering provision, the entity will
not be properly constituted.
Ø Any subsequent decision taken by such entity will be:
§ Unlawful, because the authorised administrator did not act.

Question 18

whats the meaning of delegation?

Answer 18

Delegation refers to a top-down transfer of power by a senior official that is authorised to make a decision to a lower
ranked official to make decisions on behalf of the senior official.
Ø Senior Official is the Delegator
Ø Lower ranked official is the Delegatee

Question 19

General rule on Delegation by Authorised Administrator

Answer 19

Empowering provisions generally identify the particular
administrator that must take a decision
Ø However, it is not practically feasible for the chief administrator
to personally take all decisions.

Question 20

Whats the purpose of delegation?

Answer 20

Ø Delegation addresses the practical difficulty of the original
authorised administrator taking all decisions themself by
enabling someone else to lawfully exercise the powers granted to the administrator by the empowering provision.
Ø Delegation ought to ensure improved productivity, continuity in service delivery and increased efficiency.

Question 21

when can delegation occur?

Answer 21

An authorised administrator can only delegate their power to
take a decision to another person if such delegation is authorised
by the empowering provisions.

Question 22

Director-General of National Treasury case on delegation

Answer 22

§ The Director-General of National Treasury can delegate
various powers, but only to specified officials.
§ So the impression is that an empowering provision may
provide for specified delegation or general delegation

See example on slide 27

Question 23

what section of PAJA administer delegation?

Answer 23

Ø Section 6(2)(a)(i)

§ Delegated decisions are only reviewable on the grounds of
unlawfulness if the delegation was not authorised.

Question 24

Test to determine lawfulness of decision made by delegated
power:

Answer 24

Ø Question 1
Who is the original authorised administrator?
Ø Question 2
If the administrator who actually took the decision
is not the original authorised administrator, was the original authorised administrator authorised to delegate their powers to the actual decision maker?

§ Involves a lawfulness analysis which determines:
* What the empowering provision authorises in relation to the delegation of the original authorised
administrator’s power; and
* Whether there is alignment between the person who
actually took the decision and the person who was
authorised by the empowering provision to take the
decision

Question 25

Forms of Delegation

Answer 25

Ø Express
§ Where the empowering legislation contains a section allowing
for delegation.
Ø Tacit
§ Authorisation is inferred if certain factors indicate that the
legislation tacitly authorises delegation.

Question 26

Minister of Trade and Industry & Others v Nieuwoudt &
Another on 5 Factors to determine tacit authority for delegation

Answer 26

• The degree of the devolution of the power
• The importance of the original holder of the power
• The complexity and breadth of discretion
• The impact of the power
• Practical necessities

Question 27

Where is a court more likely to accpt tacit authorisation of delegation?

Answer 27

• The original holder of the power retains some
  control/degree of power and only delegates a part of their
  power. [Degree of Devolution]
• It is not feasible for the original holder of the power to
  exercise that power individually or personally in every
  case. Especially where the original holder of the power is
  a high-ranking administrator or member of the
  executive. [Practical Necessities]

Question 28

Where is a court less likely to accept tacit authorisation of delegation?

Answer 28

• Where The original holder of the power is very important and the legislature seems to have been very deliberate in
  choosing the original administrator as the holder of the power. [Importance of the original holder]
• The decision to be taken is very complex and involves the exercise of broad discretion. [Complexity and breadth]
• The exercise of power has a significant impact [Impact]
• The relevant statute expressly authorises delegation in limited terms. [Empowering provision]

Question 29

Whats the general rule of determining Who Takes The Decision In Substance

Answer 29

The basis of the “who” question of lawfulness is that the
authorised administrator must take the relevant decision himself,
both in form and substance.
§ Therefore, the authorised administrator must:
* Be the one to formally take the decision.
* Take the decision in substance
¨ This means that they need to apply their mind and
come to the relevant decision.

Question 30

When does an administrator act unlawfully ito determining who takes the decision in substance?

Answer 30

The authorised administrator may take a decision under the
influence or dictates of another.
Ø This is unlawful, because the administrator must apply their
own mind and come to a decision.

Question 31

When else MAY an administrator act unlawfully ito determining who takes the decision in substance?

Answer 31

Ø Where their discretion is fettered by another person.
§ Meaning: Restricted, hampered, unduly influenced.
§ It may arise from the unauthorised and unwarranted influence
of other persons on the administrator as well as in the from
of a document.
* For example, where they blindly follow a policy
document without considering the merits of a particular
issue and whether or not it falls within the policy.

Question 32

PAJA sections on unauthorised administrations

Answer 32

§ Section 6(2)(e)(iv) – The action was taken:
* Because of the unauthorised or unwarranted dictates of
another person or body (Specific Unlawfulness)
§ Section 6(2)(i) – The action was otherwise unconstitutional
or lawful
* Residual unlawfulness
Ø Where they simply rubberstamp the decision of another person
or body without applying their own mind (discretion).